Navigating the complicated differences between the American and Israeli systems, this judicial authority charts out a clear legal path forward for the Jewish state.

By: Sara Lehmann

Nathan Lewin, Esq. is a household name synonymous with legal scholarship for more than 55 years. Consistently listed among the “Best Lawyers in America”, Lewin is a champion for civil liberties and has argued 28 cases before the United States Supreme Court. Many of those cases represent Jewish causes, and Lewin’s achievements and advocacy in federal and state courts have left lasting imprints on Jewish life in America.

As familiar with Israel’s legal system as with America’s, Lewin spoke with me towards the end of March about the judicial reform controversy that is roiling the State of Israel. Navigating the complicated differences between the American and Israeli systems, this judicial authority charts out a clear legal path forward for the Jewish state.

Back in January, you wrote a piece about judicial reform in Israel, coming out in favor of reform and delineating some of the differences between the Israeli and American Supreme Courts. You wrote that “the U.S. Supreme Court has long prescribed limitations on its own power.” Can you explain?

In the U.S., it’s well established that a plaintiff needs to have “standing” to be able to bring a case in court and certainly before the Supreme Court. That means a person has to have been personally harmed. With the Supreme Court of Israel, organizations that can’t show anything other than their public interest in some matter can bring a case, which results in Supreme Court decisions. In the U.S. that would be laughed out of court.

For example, an organization cannot come to the U.S. Supreme Court or any district court wanting to throw out Congressman George Santos from Congress for defrauding the voters. Yet, in Israel, three organizations could go to the Supreme Court and succeed in getting Aryeh Deri removed as a minister. They had no standing, no more than I would have to go to a court in the U.S. and say George Santos shouldn’t be in Congress.

The other limitation that’s very important is what’s called justiciability – is this a case that a court may consider. In the U.S. there’s a political question doctrine. Political questions are not justiciable. They can’t be considered or decided by a court. Who should be a minister in a cabinet is clearly a political question. If the prime minister decides that Aryeh Deri should be a minister, no U.S. court would think that you can bring an action and claim that it’s extremely unreasonable for, let’s say, the Secretary of Transportation to hold his position. That’s totally out of the question.

You use the word “unreasonable”, which is used by the Supreme Court in Israel as a barometer of determining the validity of some laws. Do you view this method as a possible arbitrary power grab that should be reformed?

That’s not the worst thing that the Supreme Court of Israel has done. It’s possible to argue that courts in the U.S. also apply standards of what is reasonable to the construction of a statute or to other situations. It ought to be on the list of reforms, but it’s not the main problem.

Is the process of self-selection of judges, resulting in perpetuating like-minded judges, more of a problem?

Absolutely, one of the very top things that has to be fixed is how you select judges in Israel and how vacancies on the Supreme Court are filled. If the president of the U.S. publicly sent a letter or called in a justice of the Supreme Court and said, “Tell me who you think out to be on the Supreme Court”, that would be a scandal.

The separation of powers here means that judges don’t decide who are going to be judges. Because those judges will be, as you say, self-perpetuating.

That used to be true totally in Israel and was cured a little bit by expanding the committee that appointed judges and justices. But the Chief Justice and other justices still essentially have veto power. In 2005, Aharon Barak essentially ran that selection committee and refused to have Ruth Gavison on the Supreme Court. She was the leading intellectual and a professor and clearly a legal scholar and very suited. But he said she had an “agenda” and kept her off the court.

Considering Barak’s “agenda”, that’s ironic. You quoted American judge Richard Posner commenting that Barak “created out of whole cloth a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.” Posner also called him an “enlightened despot” and a “legal pirate”. What is your assessment of the damage Barak incurred and the likelihood of recovering from it?

I think that the damage is only that the mob seems to think that this [Barak’s enactments] is necessary to have an independent judiciary in Israel. That’s totally wrong. Aharon Barak grabbed these powers, threw out doctrines so that anybody can come before him and his court, and did away with things that he and the majority of the court that he selected did not approve of. Because that happened Israelis now take all these things for granted.

Even the judicial reformers in Netanyahu’s coalition propose to pass a bill before Pesach that says that the selection committee will consist of three judges and one of them possibly the Supreme Court Chief Justice. That’s outrageous. But they have become accustomed to this in Israel. They believe that the only people who can decide who are good judges are the judges. That’s not right. In the U.S. it’s the president and the Senate.

Also, in Israel, candidates are not publicly vetted until the committee announces who is appointed. Why isn’t it required that if the selection committee has potential candidates, they should make them public and allow people to either testify or submit reasons why those people should or should not be selected? It’s all secret. That’s not the way it should be.

That excellent point itself has not been widely publicized. But going back to your comment on the seeming capitulation of the Netanyahu coalition due to longtime habit, isn’t the capitulation also due to pressure from the protestors, with President Herzog warning of a civil war?

There’s no question that’s true. Not only because of Herzog, but because of American protestors who I think should be much more sensible, starting with Alan Dershowitz and Irwin Cotler. People who have reasonable approaches for legal process have been in some ways brainwashed or intimidated. Dershowitz says, “This is bad and that’s bad, but we’ll compromise.” I don’t think anything is bad. Frankly, I think the least desirable provision in the judicial reform is the 61 Knesset member override [of Supreme Court rulings].

Would you be in favor of compromising on the override clause?

I would compromise and say that it should be more than 61 members, maybe 65 or 70. But overriding is not an answer in terms of Israel. The U.S. Congress can’t override a Supreme Court decision. If the Supreme Court says that this football coach has a constitutional right to kneel in prayer on the 50-yard line, I don’t care whether there are is a majority of House or Senate who disagree with that. They shouldn’t be able to override that.

Overriding has a negative aspect to it because if the Knesset can override, that’s a reason why the court should not consider overruling its own past precedents. If in the U.S. there was the authority to override a Supreme Court decision, I don’t know if there would have been a majority of the Supreme Court to overrule Roe v. Wade. Because some justices could have been persuaded that if Roe v Wade was not overridden by a huge vote in the Congress, it should stand. But under the American system, judges have the duty to consider those rare occasions when they should overrule a past precedent. And that happened – the Supreme Court overruled its past precedent.

I don’t know how often the Israeli Supreme Court has really overruled its past precedents. If you’re going to give the Knesset the power essentially to override, that’s going to take away the incentive to overrule.

If you don’t favor override, what’s a better approach?

I think the best way are the things that I talked about – selection of judges, public disclosure of candidates, limitations on justiciability, limitations on standing. I would prefer to have override be 65 or 70 members to show that there’s very substantial disagreement.

(IsraelNationalNews.com)

Sara Lehmann is a New York based columnist and interviewer. For more of her writings, please visit: saralehmann.com

This article originally appeared in Hamodia