Rabbi Pruzansky's Blog

(First published at Israelnationalnews.com)

There is an old trial lawyer’s maxim that “if the law is against you, pound the facts. If the facts are against you, pound the law. If the law and the facts are against you, pound the table.” Consider the wave of protests in Israel against the proposed judicial reforms the equivalent of pounding the table. It would be a shame, an offense against democracy, and the humiliation of a right-wing government if it allows these protests to derail the proposals and delay the process. These protests are Israel’s equivalent of January 6 – the supplanting of democracy with mobocracy – except that I fear that the January 6 rioters at the American Capitol were a little more sincere in their beliefs.

First, the facts. The weakness of the protesters’ arguments is illustrated by their ever-shifting nature. Some just obsessively hate Binyamin Netanyahu and so must oppose anything he supports. The suggestion that any of these reforms will impact his interminable trials is absurd and far-fetched, and is an accusation that is incessantly repeated without a shred of evidence to support it. He’ll be able to have more influence over the composition of the Court years from now? His trial will still be going on? He’ll be able to pass legislation shielding him from liability – and not pay a political price for that? The answer in a democracy is more democracy, not less.

Second, the notion that the proposed reforms will impair Israel’s democracy is similarly ludicrous and is made by those who assume that asserting it monotonously is itself proof of its veracity. The obvious implication is that for the first 50 years of Israel’s existence it was not a democracy and only became one when 25 years ago Aharon Barak usurped the rights of the people and imposed a judicial fiefdom in which a dozen or so robed lawyers make decisions in every aspect of life – political, religious, financial, military – instead of the people’s elected representatives and its duly constituted coalition government. It sounds as ridiculous as it reads. It cannot be a “threat to democracy” if the goal is to restore Israel’s democracy to what it was before the Barak revolution. Government by a few oligarchs is the quintessence of democracy, not the rule of the people? Why have elections altogether if the people’s choices are frustrated in their ability to implement their platforms?

The obvious answer is that the will of the people is only obstructed when they elect a right-wing government that adheres to tradition, love of the people and land of Israel, and willing to take a strong hand against our enemies. When the people – very sporadically, reality reminds us – elect a left-wing government the Court turns a blind eye to its excesses and trampling of human rights.

Thus, third, the talk of civil war and the civil disobedience that is accompanying it and interfering with people’s rights should not be tolerated. Israel’s right-wing, not to mention the settlers themselves, endured an unforgivable trauma when 9500 Jews were expelled from their homes in gush Katif and northern Shomron. The High Court will intervene and halt an attempt to remove a fence illegally erected by Bedouin to seize more land – and ignored the expulsion of thousands of Jews from their homes? Spare us the crocodile tears, the faux outrage, and the placards decrying these reforms as grounds for civil war and a threat to democracy. If the right didn’t attempt to overthrow the democratic process during the expulsion from Gaza (even though that ignoble process was a corruption of democracy) the left should not be making threats about changes to the Court’s method of judicial appointment and the limits of the Court’s jurisdiction. This is not a civil war over slavery or national destiny; it is a threat of civil war from the people who – like on January 6 in DC – do not respect the results of a democratic election in which those who voted for the government were fully aware of the proposed reforms and voted accordingly. 

Moreover, we should certainly contrast the treatment of today’s rioters and the protesters of the Gush Katif expulsion. The latter were told that their protests were a breach of democratic norms, thousands were arrested, and thousands more were kept away by the government artificially closing roads and access points to them. The judicial reforms protesters, by contrast, are coddled, allowed to block intersections at will, upset people’s schedules and lives, and are celebrated in the media. Anyone who wants to know why there is such distrust on the right of Israel’s Supreme Court and mainstream media should look no further than the disparate treatment between the two groups. Aharon Barak had no sympathy for the plight of the settlers in Gush Katif and so stripped them of their human rights, permittted their expulsion, the destruction of their homes, the extinction of their businesses and even the uprooting of their dead from their graves. That is not equality before the law but simple power politics, and cruel and mean-spirited at that. Equality before the law means applying laws of civil disobedience consistently across the political spectrum.

Fourth, the threats of grievous harm to the economy are objectively preposterous – unless they are promoted by these suicidal activists. It recalls the statement made by a historian, in another context, that the demonstrators are trying to induce “a real life disaster in order to thwart a mythical catastrophe.” If anything, investors seek a business climate that is stable and in which contracts are respected – not one in which a Court can unilaterally impose its reading of a contract on the parties, against their clear meaning and intent, simply because it wants to do so. The reforms will strengthen the business climate unless the protesters, in their madness and anger against their loss of power in a democracy, sabotage their own businesses and Israel’s prosperity. Sadly, in the Middle East, suicidal misbehavior is not unknown. And, if in the short term, there is a brief economic downturn? We survived Pharaoh, and can survive this as well, especially in a world where Israel’s know-how is desired and benefits millions of people.

Fifth, the exaggerated and risible laments have purposely triggered politicians across the world to weigh in on Israel’s domestic concerns, quite an embarrassing display. It has even induced President Joe Biden to demand that Israel’s Parliament act only with a national consensus. Perhaps he forgot – his words are usually written by others – that in the United States he passed his signature legislation without a consensus, relying just on a narrow Democratic majority. Hmmm, yes, he must have forgotten that before he started to lecture us about our legislation.

The best thing the government can do – besides arresting and incarcerating those who block roads and highways – is pass the legislation quickly, and two weeks afterward people will have moved on to something else. Negotiations on proposed legislation takes place in committee; those who choose to boycott, scream, obstruct and intimidate but not offer any cogent proposals forfeit the right to have their voices heard where it counts – in the Knesset, not the street. (The fact that so many protest leaders – including the politicians have called for similar reforms in the past only underscores the hypocrisy of the left and the political farce it is orchestrating.)

Nothing will change in Israel, and the people’s inclinations and policy preferences will continue to be thwarted, unless the Court’s jurisdiction is limited and the override clause is passed. Without that, any legislation including a change in the composition of the judicial selection committee will be overturned by the Court which perceives itself, wrongly, as the ultimate power in society. Similarly, the Knesset must pass a law permitting override of Supreme Court decisions that repudiate its laws. What is the threshold? It is a good discussion, but is a civil war justified if the threshold is 64 and not 67? That too is absurd. Of course, 64 seems too convenient (the coalition’s current Knesset majority), but if the threshold is 65 or 67, then a Supreme Court majority of 13 or 14 justices (not 12) should be mandated if the Court wishes to invalidate a law passed by the Knesset. After all, if a Knesset law is so egregious, the politicians will pay a steep price at the next elections, of which in Israel there is no shortage. And judges, despite their arrogant overreach, never pay a political price for anything. Those who are unaccountable to the public should be wary of imposing their views on the public, not eagerly and tendentiously seek such opportunities.

And obviously, there should no such individual in a civil society like Israel’s Attorney General who unilaterally has the right to order the government to do something or not do something, invalidate legislation or demand legislation. Why vote for a government if power is so concentrated in one person?

It is difficult to conceive of any Israeli who voted for the current government joining or supporting the protests or even having sympathy for them. As such, what we see before us are the sour grapes of sore losers who would rather destroy Israel as a Jewish state and a prosperous democracy than to see a right-wing government succeed in the mission for which it was elected. They have no respect for the people’s vote; why then should they respect the time, lives and livelihoods of their fellow citizens? I hope the small number of protesters – a small mob in comparison to the population that voted for the government – has the decency to stop pounding the table, that the government has the strength and courage to pass the reforms and quickly, and we can return to facing and overcoming the real challenges that threaten our peace, prosperity, unity and holiness.

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     The left-leaning Israeli media is disseminating news articles transmitting the discontent of American Jewish leaders with the new Israeli government and the policies it wishes to implement. A good example of this genre is the recent headline that blared “169 liberal US Jewish leaders sign letter expressing concern over Israeli government.” These leaders headed non-Orthodox rabbinical seminaries, federations, AIPAC, the Conference of Presidents and others, and they decried accusations of “anti-Semitism” directed against critics of Israel’s government (I haven’t heard any but be that as it may) as well as the now familiar laments about the proposed judicial reforms that will preserve Israel’s democracy and the amendment to the grandfather clause in the Law of Return that currently allows third-generation Gentiles to become Israeli citizens as “Jews.”

      The lines are drawn and there is little I can do to assuage their “concern over the Israeli government.” What I can do is this: express my concern over the state of American Jewish leadership. And these concerns are well founded.

      It is not only that these leaders are self-appointed and often found their own organizations of which they anoint themselves the leaders for life. It is primarily that these leaders are presiding over the rapid decline and disappearance of American Jewry under the dual albatrosses of assimilation and intermarriage. The population of American Jewry is steadily declining, artificially sustained only by counting halachic non-Jews as part of the Jewish community (even those who do not perceive themselves as such). The intermarriage rate among American Jews outside the Orthodox world hovers at around 75%. I am concerned about that because I grieve at the disappearance of every single Jew.  I am concerned about American Jewish leadership’s attitude toward this problem and lament their inability or reluctance to do anything about it.

     I am concerned over the drift over American Jewish leadership from liberalism to the far left, the progressive end of the political spectrum. I am concerned that the Reform Jewish movement proudly features on its website an article entitled “Why Pronouns are So Important – and Why Using the Right Ones is so Jewish.” I am concerned because that is not at all important (in fact, it seems ridiculous and a denial of reality) and it is not at all Jewish. I am concerned because American Jewish leadership seems enamored with every progressive cause far more than they are with Torah knowledge and observance of mitzvot, Jewish identity and Jewish continuity. Indeed, as the progressives embrace anti-Israel activism in all its forms – delegitimization, boycott, divestment and sanction, I am concerned that American Jewish leaders will ultimately fall into lockstep with these Jew haters so as to remain in their good graces.

     I am concerned that American Jewish leaders do little to try to influence Jews to be more Jewish – more learned in Torah, more observant of mitzvot, more inclined to marry Jews and have Jewish children and grandchildren. Some of these signatories are intermarried themselves.

     I am concerned that American Jewish leaders have fallen into the trap of denouncing anti-Jewish attacks from so-called right wingers but rarely (or never) if perpetrated by leftists, progressives, blacks or Muslims. I am concerned that they downplay or ignore assaults on easily-identifiable religious Jews. I am concerned that many American Jewish leaders have come to the defense of Ilhan Omar and Rashida Tlaib, blatant Jew haters but, nevertheless, still Democrats, like almost all of these American Jewish leaders, and thus must be defended.

     I am concerned that American Jews have so many problems – internal and external – and American Jewish leaders are racing, tripping over themselves, sending letter and issuing daily statements criticizing Israel’s democracy and opining on pending legislation, which, by any reasonable reading, will have absolutely no effect on American Jewry (not even revising the grandfather clause pursuant to which very few Americans ever apply for Aliyah).

      I would be even more concerned if I hadn’t seen this movie before. In this week’s sedrah (Beshalach), God eschewed guiding the Jewish people to Israel through the shorter sea route and instead takes the more arduous wilderness journey “lest the people reconsider when they see a war and return to Egypt” (Shemot 13:17). A few days later, the people saw the approaching Egyptian army, fearsome in its might and capabilities, and complained to Moshe: “Was there a shortage of graves in Egypt that you took us to die in the wilderness…Did we not say ‘better to serve the Egyptians than to die in the wilderness’” (14:11-12)?

    The “people” feared a war and the “people” complained to Moshe.  And where were the leaders, the heads of the Jewish tribes and organizations, to calm the people, to explain to them the situation, to have faith in God and confidence in Moshe? Where were the Egyptian-Jewish leaders to assist Moshe?

     The answer is that they were long gone. Moshe and Aharon appealed to them before the first summit with Pharaoh and they were enthused with Moshe’s mission and the impending redemption – until they had to undertake personally the risky assignment of accompanying Moshe and Aharon to Pharaoh. They did not quite make it. Rashi (5:1) comments that one by one these leaders slinked away out of fear of what Pharaoh would say or do. They were not “leaders.” They had organizations and titles but they could not lead people and they could not even follow Moshe. So, confronted with George Patton’s choice of “lead, follow or get out of the way,” they got out of the way, and quickly. Moshe (and Aharon) had to lead alone, by themselves. Thereafter the people approached them, directly, without any intermediary. They had other “leaders” in name only.

     American Jewish leaders profess to support a Jewish and democratic Israel. Yet they blithely oppose legislation that would make the State of Israel more Jewish (repealing the grandfather clause) and more democratic (reforming the judiciary). They need to get their house in order. I do not doubt their sincerity. These leaders are dedicated professionals. But their misguided choices, shallow understanding of Torah and failure to adequately address the real problems of American Jewry has me concerned.

     And that should concern all Jews who are lovers of Israel and the Jewish people.

(First published at Israel365.com and Israelnationalnews.com)

Did the Supreme Court disqualify Aryeh Deri from serving as a minister because the justices genuinely believed that his multiple criminal convictions rendered him unfit to serve in high office? Or did the Court banish him because it is its last best hope to topple the Netanyahu government and thwart the intended reforms that will dilute the Court’s current nearly unlimited powers? Or maybe it was a combination of the two?

      The fact that these questions are legitimate and that we will never know the answer underscores the credibility problem Israel’s Supreme Court has with a large part of the public. On one hand, there are cogent reasons to ban Deri from serving as a minister. But those same reasons easily pertained to banning him from politics altogether. Thus, on the other hand, it is inherently undemocratic to negate the vote of hundreds of thousands of Shas voters who voted for him knowing of his ethical challenges. It seems odd to allow someone to run with the strong presumption that if his bloc won a majority he (the party leader) would become a minister, only to have an unelected judicial body pull the rug out from under him after the election. It is odder still that the Court took this drastic action without even a semblance of statutory support but simply based on the Court’s own conclusions of what is reasonable. No wonder so many thoughtful people think the Court is out of control and needs to be reined in. 

      In essence, the Court here without authority usurped the role of the prime minister in choosing his cabinet, just as it routinely commandeers the role of defense minister by decreeing security strategy and tactics, just as it routinely appropriates the role of each minister by dictating policy when it is so inclined, just as it arrogates to itself the role of Knesset when the Court invalidates laws or preempts their enactment by leaking that, if passed, the law will be invalidated, and just as it seizes the function of the Chief Rabbinate when the Court deigns to determine conversion standards and which establishments should be deemed kosher. 

      Israel’s Supreme Court thus serves as a Super Minister (above the Prime Minister), a Super General (above the Chief of Staff),  a Super Legislator (above the Knesset) and a Super Posek (above the Chief Rabbis). And it fills all these roles without statutory sanction and without being elected by or accountable to the people – and the Court even controls the selection process of its future members.

       Thus, the Supreme Court controls the judicial branch of government and for practical purposes dominates the executive and legislative branches. If I didn’t know any better, I would think that such an institution is a threat to democracy and needs to be reformed. Imagine, for a moment, that the United States Supreme Court decided unilaterally that it is “unreasonable” that Pete Buttigieg serve as Secretary of Transportation and must be summarily fired. That is not an implausible recommendation but it is unimaginable and unthinkable that such should occur because the US Supreme Court operates under constitutional and statutory constraints. No such limits currently pertain to the Israeli Supreme Court; hence the purpose of the reforms.

     Is there a Torah perspective on the proposed judicial reforms? The instant answer is negative. The secular court system is not a Bet Din and the High Court is not a Sanhedrin (ironically, the Sanhedrin served a quasi-legislative function – but ancient Israel did not have a legislature). The qualifications of the judges and the standards of evidence applied do not adhere to the Torah’s framework for a judicial system. The laws that the Court enforces (or concocts) do not always conform to Halacha  and the Court  for more than a quarter century has studiously avoided applying the Foundations of Laws Act (1980) that calls on the judges of Israel to refer to Moreshet Yisrael (the historical heritage of the Jewish people) when a clear statutory framework is lacking. 

     Instead, it supplants the heritage of Israel and the will of the electorate by basing its most controversial and lawless decisions on, one supposes, Moreshet Tel Aviv, the values of the people (primarily, in the first instances, the justices themselves) whom they deem to be enlightened. And for that, people demonstrate in Tel Aviv and have, through misrepresentations, hysteria, and falsehoods, incited indignation across the world to Israel’s detriment.

      And yet, perhaps we can glean some guidance from the Torah as to the substance and desirability of the proposed reforms. What is the purpose of the judicial system according to the Torah? Well, it is to do justice, which is defined as applying the law equally and fairly to all. The Jewish court does not favor the poor over the rich, the alien over the citizen, the Arab over the Israeli, the Muslim over the Jew, the enlightened over the unenlightened, or the secular over the religious. “Justice” is not social justice, economic justice, racial justice, environmental justice, or any other qualifier. To preface “justice” with an adjective is to distort the very concept of justice. “One law for everyone.” That is the primary role of the court.

      Similarly, since Halacha is given to us as a holistic (and holy) system, the Jewish court does not fabricate laws or substitute its own thinking for that of the Torah. In our context, the role of the court is not to legislate or to create new laws but to interpret the laws as passed by the Knesset and adjudicate cases and controversies that arise between the citizens. Like the other branches of the Jewish government, the system is intended to elicit the divine presence and make us a holier, more faithful people – not a nation that is enamored with Western decadence.

     Furthermore, one of the 613 commandments requires the appointment of judges “in all our gates” (Sefer Hachinuch, mitzvah 491). This is generally done by the people and/or the leadership. The judges do not appoint their successors nor are they given veto power over new nominees as the current Court has, all the better to ensure ideological conformity.

     It is worth noting that the authority of the Sanhedrin derived from the Torah (Devarim 17:11) and thus from G-d. The people accepted its rulings because such deference was commanded by the Torah and rooted in one of the 613 commandments. But from where does Israel’s Supreme Court derive its authority? Presumably from the laws of the Knesset that created it and defined its jurisdiction. Thus when the Court exceeds its statutory authority and adjudicates matters beyond its delegated capacity (such as the revolution waged by Aharon Barak that renders any and all matters justiciable) it has no recognized authority. The government and public’s adherence to those rulings would be discretionary but for Israel’s secular media that treat the pronouncements of the Court with greater reverence that they have for the revelation at Sinai and deem dissenters and even questioners as ignoble heretics.

     Finally, perhaps the greatest lesson from the Torah relates to the qualifications for judges. Certainly, a Jewish court requires “men of wisdom and understanding, exceptional in the wisdom of Torah, with broad intellectual potential, and familiar with other wisdoms” (Rambam, Laws of Sanhedrin 2:1). For our purposes, though, Rambam (2:7) noted that judges should possess “wisdom, humility, fear of G-d, distaste for wealth, a love for truth, beloved by the people and possessors of a good reputation.” We assume that is hard to find – but note the importance of “love of truth” which precludes having a social or political agenda that the judge seeks to implement. Loving truth means following the law even if it does not accord with one’s personal preferences. The judge should be “beloved by the people,” not deem the people as unenlightened, social inferiors, and “possessors of a good reputation,” not usurping authority on specious grounds and threatening civil war if that authority is not conceded.

     The judicial coup d’etat sparked by the Barak revolution has now been joined. Democracy is being defended, not subverted. And the current reforms that seek to limit judicial review, curb the Court’s unlimited powers, restrain its jurisdictional overreach, restore authority to the people, and restructure the judicial selection process have an added advantage: they promote the ideals and values of the Torah as it perceives a functioning judiciary in the kingdom of priests and holy nation.