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A law professor worries Israel could become the next Hungary
(JTA) — Israel’s new governing coalition has been called the “most right-wing” in the nation’s history. That’s heartening to supporters who want the country to get tough on crime and secure Jewish rights to live in the West Bank, and dismaying to critics who see a government bent on denying rights to Israel’s minorities and undermining any hope for a peaceful solution to the Israeli-Palestinian conflict.
While the far-right politics of new government ministers Bezalel Smotrich and Itamar Ben Gvir have drawn much of the world’s attention, a series of proposed changes to Israel’s judicial system has also been raising hopes and alarms. On Wednesday, new Justice Minister Yariv Levin announced an overhaul that would limit the authority of the High Court of Justice, Israel’s Supreme Court. It would put more politicians on the selection committee that picks judges, restrict the High Court’s ability to strike down laws and government decisions and enact an “override clause” enabling the Knesset to rewrite court decisions with a simple majority.
Levin and his supporters on the right justify these changes as a way to restore balance to a system that he says puts too much control in the hands of (lately) left-leaning judges: “We go to the polls, vote, elect, and time after time, people we didn’t elect choose for us. Many sectors of the public look to the judicial system and do not find their voices heard,” he asserted. “That is not democracy.”
Critics of the changes call them a power grab, one that will hand more leverage to the haredi Orthodox parties, remove checks on the settlement movement and limit civil society groups’ ability to litigate on behalf of Israeli minorities.
To help me make sense of the claims on both sides, I turned to Tom Ginsburg of the University of Chicago, where he is the Leo Spitz Distinguished Service Professor of International Law and co-directs the Comparative Constitutions Project, which gathers and analyzes the constitutions of all independent nation-states. He’s also a Jew who has transformed a former synagogue on the South Side of Chicago into a cutting-edge arts space, and says what’s happening with Israel’s new governing coalition “raises my complicated relationship with the country.”
We spoke on Friday. Our conversation has been edited for length and clarity.
Jewish Telegraphic Agency: You have written about law in Israel, which lacks a constitution but relies on a series of “basic laws” to define its fundamental institutions. You’ve written that the Israeli judiciary had become “extremely powerful” — maybe too powerful — in imbuing the basic laws with a constitutional character, but worry that the current reforms will politicize the court in ways that will undermine Israeli democracy.
Tom Ginsburg: The proposed reforms were a campaign promise of certain elements of this coalition who have had longstanding grievances against the Israeli judiciary. The Israeli judiciary over the last decades has indeed become extremely powerful and important in writing or rewriting a constitution for Israel, promoting human rights and serving as a check and balance in a unicameral parliamentary system where the legislature can do anything it wants as a formal matter. A lot of people have had problems with that at the level of theory and practice. So there have been some reforms, and the court has, in my view, cut back on its activism in recent decades and in some sense has been more responsive to the center of the country. But there’s longstanding grievances from the political right, and that’s the context of these proposals.
A lot of the concerns about the new government in Israel are coming from the American Jewish left. But in an American context, the American Jewish left also has a big problem with the United States Supreme Court, because they see it as being too activist on the right. So in some ways isn’t the new Israeli government looking to do what American Jewish liberals dream of doing in this country?
Isn’t that funny? But the context is really different. The basic point is that judicial independence is a really good thing. Judicial accountability is a really good thing. And if you study high courts around the world, as I do, you see that there’s kind of a calibration, a balancing of institutional factors which lead towards more independence or more accountability and sometimes things switch around over time.
Israeli Justice Minister Yariv Levin holds a press conference at the Knesset, the Israeli parliament in Jerusalem, Jan. 4, 2023. (Olivier Fitoussi/Flash90)
You mean “accountability” in the sense that courts should be accountable to the public.
Right. The Israeli promoters of these plans are pointing to the United States, in particular, for the proposals for more political involvement in the appointment process. On the other hand, in the United States once you’re appointed politically, you’re serving for life. There’s literally no check on your power. And so maybe some people think we have too much independence. If these proposals go through in Israel, there will be a front-end politicization of the court [in terms of the selection commission], but also back-end checks on the court [with the override clause that would allow a simple majority to reinstate laws struck down by the Supreme Court]. So in some sense, it moves the pendulum very far away from independence and very much towards accountability to the point of possible politicization.
And accountability in that case is too much of a good thing.
Again, you don’t want courts that can just make up rules. They should be responsive to society. On the other hand, you don’t want judges who are so responsive to society that there’s no protection for the basic rights of unpopular minorities.
What makes Israel either unique or different from some of the other countries you study, and certainly the United States? Part of it, I would guess, is the fact that it does not have a constitution. Is that a useful distinction?
They couldn’t agree on a single written constitution at the outset of the country, but they have built one through what you might call a “common law method”: norms and practices over time as well as the system of “basic laws,” which are passed by an absolute majority of the Knesset, where a majority of 61 votes can change any of those. But while they’re not formally entrenched, they have a kind of political status because of that term: basic law.
By the way, the Germans are in the same boat. The German constitution is called the Basic Law. And it was always meant to be a provisional constitution until they got together and reunified.
If you don’t have a written constitution, what’s the source of the legitimacy of judicial power? What is to prevent a Knesset from just passing literally any law, including ones that violate all kinds of rights, or installing a dictator? It has been political norms. And because Israel has relied on political norms, that means that this current conflict is going to have extremely high stakes for Israeli governance for many decades to come.
Can you give me a couple of examples? What are the high stakes in terms of democratic governance?
First of all, let me just say in principle that I don’t oppose reforms to make the judiciary more independent or accountable in any particular country. But then you obviously have to look at the local context. What’s a little worrying about this particular example is that several members of this coalition are themselves about to be subject to judicial proceedings.
Including the prime minister, Benjamin Netanyahu.
Right. And for example, they need to change the rules so that [Shas Party chairman] Aryeh Deri can sit in the cabinet despite his prior convictions. That indicates to me that maybe this isn’t a good-faith argument about the proper structure of the Israeli, uncodified constitution, but instead a mechanism of expediency.
Any one of these reforms might look okay, and you can find other countries that have done them. The combination, however, renders the judiciary extremely weak. Right now, it’s a multi-stakeholder commission that nominates and appoints judges in Israel, and the new coalition wants to propose that the commission be made up of a majority of politicians. We know that when you change the appointments mechanism to put more politicians on those committees, the more politicized they become.
Think about the United States process of appointing our Supreme Court judges: It’s highly politicized, and obviously the legitimacy of the court has taken a big hit in recent years. In Israel, you’d have politicized appointments under these reforms, but then you also have the ability of the Knesset to override any particular ruling that it wanted. Again, you can find countries which have that. It’s called the “new commonwealth model” of constitutionalism, in which courts don’t have the final say on constitutional matters, and the legislature can overrule them on particular rulings. But I think the combination is very dangerous because you could have a situation where the Knesset — which currently has a role in protecting human rights — can pick out and override specific cases, which really to me goes against the idea of the rule of law.
You mentioned other countries. Are there other countries where these kinds of changes were enacted and we saw how the experiment turned out?
The two most prominent recently are Hungary and Poland, which are not necessarily countries that you want to compare yourself to.
Certainly not if you are Israel.
Right. There’s so much irony here. When the new Polish government came in in 2015, they immediately manipulated the appointment system for the Constitutional Court and appointed their own majority, which then allowed them to pass legislation which probably would have been ruled unconstitutional. They basically set up a system where they were going to replace lower judges and so they were going to grow themselves into a majority of the court. And that’s led to controversy and rulings outside the mainstream that have led to protests, while the European Union is withholding funds and such from Poland because of this manipulation of the court.
In Hungary, Victor Orban was a really radical leader, and when he had a bare majority to change the constitution he wiped out all the previous jurisprudence of the Constitutional Court. I don’t think the Israeli government would do that. But still there is this kind of worrying sense that they’re able to manipulate interpretation of law for their own particular political interest.
Another thing I want to raise is the potential for a constitutional crisis now. Suppose they pass these laws and the Israeli Supreme Court says, “Well, wait a minute, that interferes with our common law rules that we are bound by, going back to the British Mandate.” It conflicts with the basic law and they invoke what legal scholars call the “doctrine of unconstitutional constitutional amendments,” which is basically saying that an amendment goes against the core of our democratic system and violates, for example, Israel’s character as a Jewish and democratic society. Israel has never done this, but it is a kind of tool that one sees deployed around the world in these crises. And if that happened, then I think you would have a full constitutional crisis on your hands in Israel.
Supreme Court President Aharon Barak speaks with Prime Minister Benjamin Netanyahu during a ceremony in the Supreme Court marking 50 years of law, Sept. 15, 1998. (Avi Ohayon)
What does a constitutional crisis look like?
Suppose you have sitting justices in Israel who say, “You know, this Knesset law violates the basic law and therefore it’s invalid.” And then, would the Knesset try to impeach those judges? Would they cut the budget of the judiciary? Would they back down?
When you compare Israel’s judicial system to other countries’ over the years, how does it stack up? Is it up there among the very strong systems or is it known for flaws that might have maybe hobbled its effectiveness?
It’s always been seen around the world as a very strong judiciary. Under the leadership of Aharon Barak [president of Israel’s Supreme Court from 1995 to 2006] it became extremely activist. And this provoked backlash in Israeli politics. That led to a kind of recalibration of the court where it is still doing its traditional role of defending fundamental rights and ensuring the integrity of the political process, but it’s not making up norms left and right, in the way that it used to. This is my perception. But it’s certainly seen as one of the leading courts around the world, its decisions are cited by others, and because of the quality of the judges and the complex issues that Israel faces it’s seen as a strong court and an effective court and to me a balanced court.
But, you know, I’m not in Israel, and ultimately, they’re going to figure out the question how balanced it is or where it’s going to go. I do worry that an unchecked majoritarian system, especially with a pure proportional representation model like Israel, has the potential for the capture of government by some minorities to wield power against other minorities. And that’s a problem for democracies — to some degree, that’s a problem we face in the United States.
How correctable are these reforms? I am thinking of someone who says, “These are democratically elected representatives who now want to change a system. If you want to change the system, elect your own majority.” Is the ship of state like this really hard to turn around once you go in a certain direction?
This is an area in which I think Israel and the United States have a lot of similarities. For several decades now, the judiciary has been a major issue for those on the political right. They thought the Warren Court was too left-leaning and they started the Federalist Society to create a whole cadre of people to staff the courts. They’ve done that and now the federal courts are certainly much more conservative than the country probably. But the left didn’t really have a theory of judicial power in the United States. And I think that’s kind of true in Israel: It’s a big issue for the political right, but the political left, besides just being not very cohesive at the moment, isn’t able to articulate what’s good about having an independent judiciary. It is correctable in theory, but that would require the rule of law to become a politically salient issue, which it generally isn’t in that many countries.
How do you relate to what is happening in Israel as a Jew, and not just a legal scholar?
That’s a great question, because it really raises my complicated relationship with the country. You know, I find it to be a very interesting democracy. I like going to Israel because it’s a society in which there’s a lot of argument, a lot of good court cases and a lot of good legal scholars. On one level, I connect with my colleagues and friends there who seem very demoralized about this current moment. And I honestly worry about whether this society will remain a Jewish and democratic one with the current coalition.
The rule of law is a part of democracy. You need the rule of law in order to have democracy function. And I know others would respond and say, “Oh, you’re just being hysterical.” And, “This isn’t Sweden, it’s the Middle East.” But the ethno-nationalist direction of the country bothers me as a Jew, and I hope that the court remains there to prevent it from deepening further.
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Remembering Abe Foxman, the longtime ADL leader known as the ‘Jewish pope,’ who always answered my calls
Friday before sundown, I realized that Abe Foxman had not sent me his weekly “Shabbat Shalom” message. For the past seven years, since we began texting regularly about Jewish and political issues, the message would arrive each Friday like clockwork — often accompanied by screenshots of Shabbat memes. My response never changed: “Good Shabbos, tzaddik,” using the Hebrew word for a righteous person that Foxman himself often used.
A few minutes after sundown, I texted him anyway: “Good Shabbos, tzaddik.” Then I turned off my phone. The message showed as “read” Saturday night. But there was no response.
I’m sure I wasn’t the only one waiting for Foxman’s Shabbat greetings. The silence said everything. On Sunday, the Anti-Defamation League announced that its former longtime chief had died at age 86.
I first started texting with Foxman after he stepped down in 2015 as national director of the ADL, concluding a remarkable 50-year run with the organization, including nearly three decades at its helm. By then, he had become one of the most recognizable Jewish communal leaders in America. He was nicknamed the “Jewish Pope.” Former President Barack Obama, a frequent target of Foxman’s criticism over Israel policy, said upon Foxman’s retirement: “Abe is irreplaceable.”
For me, a rookie journalist covering national politics through a Jewish lens, Foxman became an invaluable source. He was in the room with presidents, prime ministers and world leaders during some of the Jewish community’s most consequential moments. Yet he was always available. He answered calls quickly. He texted back. He spoke candidly. He could be sharp, direct and deeply critical when he thought leaders were making mistakes. But he was also compassionate, warm and surprisingly personal.
Every conversation began the same way: asking about me. My kids. How I was holding up. Only then would we get to politics. The conversation would often veer from Yiddish to English and back again.
Our last conversation was on April 15, after a record 40 Senate Democrats voted to block $295 million for the transfer of bulldozers to Israel and 36 of them also supported a measure to block the sale of 1,000-pound bombs to the Jewish state. “A broch,” Foxman replied, using the Yiddish word for disaster. “A sad time for American politics.”
That worldview shaped much of his public commentary in recent years. In interviews with the Forward and other publications, Foxman weighed in on rising antisemitism, campus protests, Democratic divisions over Israel, President Donald Trump’s rhetoric, and the Biden-Netanyahu relationship.
Foxman could be combative and unapologetic. Critics on the left viewed him as too hawkish on Israel, while critics on the right sometimes accused him of being too willing to criticize the Israeli government or American conservatives. But nobody doubted his commitment to the Jewish people and to Israel.
Foxman’s own life story
Born in Baranavichy in 1940, in what is now Belarus, Foxman survived the Holocaust as an infant after being hidden by his Polish Catholic nanny, who baptized him to hide his Jewish identity, while his parents were confined to a ghetto. After the war, he was reunited with his parents, first living in a displaced persons camp in Austria before immigrating to the United States.
Those early experiences shaped the course of his career and ultimately made him one of the most influential Jewish communal leaders of the modern era.
In 1965, after getting degrees from City College of New York and New York University School of Law, Foxman joined the Anti-Defamation League as a legal assistant. Over the next five decades, Foxman rose through the ranks of the organization before being named its national director in 1987, a position he held until 2015.
Under his leadership, the ADL became one of the world’s most prominent voices combating antisemitism and hate.
In 1987, President Ronald Reagan appointed Foxman to serve on the council of the United States Holocaust Memorial Museum. He was reappointed by Presidents George H. W. Bush, Bill Clinton and Joe Biden. He was also vice chairman of the Museum of Jewish Heritage in New York City.
Foxman was often willing to challenge leaders he believed were wrong on Israel, including Democratic presidents he otherwise respected. He was sharply critical of Obama’s approach toward Israel early in his presidency and became one of the leading Jewish voices opposing the administration’s 2009 demand for a freeze on Israeli settlements.
In remarks at Foxman’s farewell dinner in 2015, Susan Rice, former U.S. ambassador to the U.N. and national security advisor under Obama, told the audience: “The thing I most value about Abe is his candor and integrity. He holds everyone to the same high standards, and I can always count on him to tell it to me straight, even when he knows I won’t necessarily like what he has to say.” In 2020, Foxman publicly advocated for Biden to choose Rice as his vice-presidential running mate.
“America and the Jewish people have lost a moral voice, a passionate advocate for the Jewish people and the state of Israel, and a remarkable leader,” Foxman’s successor, ADL CEO Jonathan Greenblatt, said in a statement announcing Foxman’s death.
Foxman’s political commentary
Even after retiring from the ADL, Foxman remained a leading voice in Jewish public life, especially after the election of Trump in 2016.
Foxman told me in an interview at the time that the Jewish community should engage with Trump and hold him accountable when needed. He advised Trump to be cautious about making good on his promise to move the U.S. embassy from Tel Aviv to Jerusalem. He became more critical of Trump after the president said that there were “very fine people on both sides” in response to a 2017 neo-Nazi rally in Charlottesville, Virginia.
In 2020, Foxman broke his tradition of not endorsing political candidates to back Biden. He argued that Trump was a “demagogue” whose reelection would be a “body blow for our country and our community.”
Once Biden took office, Foxman started to express doubts about the president’s handling of the U.S. relationship with Israeli Prime Minister Benjamin Netanyahu. He said it “sends the wrong message to our friends and enemies” that Israel is being held to a higher standard than other countries in the region. Foxman was also a harsh critic of the Netanyahu government’s judicial overhaul, warning that the right-wing cabinet ministers could hamper support for Israel among American Jews.
In 2024, he warned that Biden’s increasingly harsh rhetoric over Israel’s military campaign in Gaza would repel Jewish voters. “I believe that this administration, because of its political season, is taking American Jews for granted or has written us off,” said Foxman. ”If they’re worried that the Arabs in Michigan will vote with their feet, they need to worry that Jews can also vote with their feet.”
Most recently, Foxman was critical of national Democrats opposing the military operations against the Iranian regime in March for a lack of congressional authority. “Sadly, it is purely political games,” Foxman told me, noting that previous Democratic administrations conducted military operations without explicit congressional authorization. “Ninety-nine percent of Democrats are on record saying Iran is a terrorist state and cannot have nuclear weapons. So why this game?” he asked.
Now, as Jews mark Jewish American Heritage Month, that voice is silent. But for me, and for the many people still waiting for one more “Shabbat Shalom” message from Foxman, he will not soon be forgotten.
Foxman is survived by his wife Golda, his daughters Michelle and Ariel and four grandchildren.
JTA contributed to this article.
The post Remembering Abe Foxman, the longtime ADL leader known as the ‘Jewish pope,’ who always answered my calls appeared first on The Forward.
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Jailed Iranian Peace Laureate Mohammadi Moved to Hospital in Tehran
A picture of Nobel Peace Prize winner Narges Mohammadi on the wall of the Grand Hotel in central Oslo before the Nobel banquet, in connection with the awarding of the Nobel Peace Prize 2023, in Oslo, Norway, Dec. 10, 2023. Photo: NTB/Javad Parsa via REUTERS
Iran’s imprisoned Nobel Peace Prize winner Narges Mohammadi has been moved to a hospital in the capital, Tehran, and has been granted a suspension of her sentence on heavy bail, a foundation run by her family said on Sunday.
Mohammadi, 54, won the prize in 2023 while in prison for a campaign to advance women’s rights and abolish the death penalty. She suffered a heart attack two weeks ago.
Her family had called for her to be transferred from Zanjan, northwest of Tehran, where she was serving her sentence and where she had been initially taken to a hospital, so that she could receive better medical care.
She is now at Tehran Pars Hospital for treatment by her own medical team after being transferred by ambulance, the Narges Mohammadi Foundation said in a statement.
Mohammadi was sentenced to a new prison term of 7-1/2 years, the foundation said in February, weeks before the US and Israel launched their war against Iran. The Nobel committee at the time called on Tehran to free her immediately.
She had been arrested in December after denouncing the death of a lawyer, Khosrow Alikordi. A prosecutor told reporters that she had made provocative remarks at Alikordi’s memorial ceremony.
The foundation gave no details of the bail arrangements or suspension of her sentence.
“However, a suspension is not enough,” it said. “Narges Mohammadi requires permanent, specialized care. We must ensure she never returns to prison.”
Iran shut down most of the internet in the country in January as authorities suppressed mass protests triggered by economic unease. Rights groups have reported ongoing executions of people involved in the unrest.
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Israel’s Attorney General Calls to Cancel Netanyahu’s Mossad Chief Appointment
Israeli Attorney-General Gali Baharav-Miara. Photo: Twitter
i24 News – Attorney General Gali Baharav-Miara told the High Court of Justice on Sunday that Prime Minister Benjamin Netanyahu’s decision to appoint Maj. Gen. Roman Gofman as the next Mossad chief must be canceled.
Baharav-Miara filed her position ahead of a Tuesday hearing on petitions challenging the appointment, telling the court that “substantial flaws” had been found both in the process conducted by the advisory committee and in the conclusions it drew. She said Netanyahu’s decision suffered from “extreme and blatant unreasonableness” and could not stand legally.
At the center of the dispute is the case of Ori Elmakayes, who was a 17-year-old minor when he was activated in 2022 by Division 210, without going through authorized intelligence channels. At the time, the division was commanded by Gofman. Elmakayes was arrested in May 2022 under espionage charges after two officers sent him classified information and told him to post it online as part of an “influence campaign,” despite not being authorized to do so. Gofman initiated this operation. Elmakayes was then held in full detention until July, spending an extended period under electronic monitoring and house arrest before the indictment against him was canceled in late 2023.
Baharav-Miara says Gofman’s involvement in leaking the classified information to the minor, “casts a heavy shadow on Gofman’s integrity and thus on his appointment to head the Mossad.” The attorney general also identified serious procedural failings in the advisory committee’s work. She notes that the majority members signed their opinion before committee chairman and former Supreme Court president Asher Grunis had written his dissent and before two members had reviewed several classified documents significant to the full picture. Grunis concluded that integrity flaws had been found and that it was not appropriate to appoint Gofman as Mossad chief.
The attorney general also says the committee failed to hear directly from Elmakayes or from a relevant senior military intelligence officer, instead relying in part on media interviews.
Netanyahu, who appointed Gofman to head the Mossad starting in early June, for a five-year term, submitted his own response to the court on this past Friday, arguing that the decision fell within his executive authority. The Prime Minister also said that his assessment of the matter was “dozens of times superior” to that of the court, adding that Gofman’s integrity was “found pure,” and describing him as the most qualified candidate.
Other coalition figures responded to the attorney general with sharp criticism, including National Security Minister Itamar Ben-Gvir. Ben-Gvir accused Baharav-Miara of fighting the state, while Finance Minister Bezalel Smotrich said her position was “one step too far” and vowed to advance legislation splitting the attorney general’s role in the Knesset’s summer session.