I gave my presentation this morning on the constitutional crisis in Israel to my Thursday morning breakfast group. I thought it went well. Gave myself a B+.

I started from the premise that Americans protesting the pending changes in Israel do so from an American perspective, without sufficient understanding of the Israeli situation. I purposely did not express my political positions in my talk – I just wanted to provide context that those protesting so loudly would have a better understanding of what they are protesting.

The areas of concern are (1) how Supreme Court justices are selected, (2) should a Supreme Court have the right to nullify legislation passed by a parliament or Congress, and (3) should the legislative body have a right to overrule the Supreme Court?

I pointed out that the Israeli and American governmental systems are very different. We have 50 states and DC; they have one unified country – no states or provinces, only one court system. We have a separately elected president; their prime minister is selected by their parliament.

In the US, the appointment of Supreme Court justices is inherently political. The president nominates; the Senate approves. In Israel, up until now, the 9 member judicial selection committee is made up of 4 representatives of the governmental majority, and 5 representatives of the Court itself and the Israel Bar Association.

The current proposal is now to have an 11 member selection committee in Israel with 6 members appointed by the governmental majority, and requiring the approval of at least one minority member of the parliament or Court for the third and subsequent nominations within one parliamentary term. During such a term, there are, on average, 2.6 justices selected, so that the ruling coalition would in theory (over a period of 2 terms, or 8 years, have selected 4 of the 5 justices).

The argument of the proponents is that this would make things more democratic, and that justices would no longer be chosen by non-elected individuals. The opposition responds that, without this check, there would be no balance and the majority could select any politicos who would support their cause.

By the way, another difference between the two countries. In our country, a justice serves for life. In Israel, it is a 9 year term (no second term allowed) and there is a mandatory retirement at 70.

The other debate is about the ability of the Supreme Court to have judicial review. Nothing is said in the US constitution about the Supreme Court having the right to nullify a law passed by Congress. But in practice, this has been permitted time and time again since 1802, when a unanimous Court in an opinion written by Chief Justice Marshall (Marbury v Madison) stated that portions of a law passed by Congress in 1799, which gave the Supreme Court the right to hear certain cases as the first court of facts, was unconstitutional because the Constitution stated that the Court was to be primarily an appellate court (I am paraphrasing, obviously).

In Israel, where there is no written constitution, there was no judicial review until 1992, when the parliament then passed a revision to the judicial code which permitted it (again, I am simplifying). It is this 1992 law (or at least its interpretation by the Supreme Court) that is now seemingly being rewritten. Again, the proponents say that parliament, not unelected judges operating without a constitution should be able to pass what it wants (there are a few exceptions in the newly proposed legislation), and that that is what democracy is all about. And the opposition is saying that you need checks and balances, not an unlimied parliamentary right.

Interestingly, for those who are unaware, in places like Canada and Australia, the Courts are limited as to what laws they can overturn, and the Parliaments have a way to revoke the Court’s nullification. In Britain, courts have no right to overturn any laws, to my understanding.

At any event, the point is (a) we in the US do not have the perfect system and (b) powers of Supreme Courts across the world vary a great deal, and (c) no system is perfect. The Israeli system today may be imperfect and fragile, and the proposal by the new right wing governing coalition may make things worse, not better.

We see polarization everywhere, certainly in this country, and certainly in Israel. Legislators of good faith and with practical sense seem to be sorely lacking. We don’t know yet how the Israeli situation will play out, and it may be very proper and appropriate to protest against the proposed changes, but when we do it, we should do with sufficient background and context.

This post describes some, but not all, of the thoughts I brought up this morning. and there are many thoughts that I was not able to bring up in a 40 minute presentation. For example, do you know that many countries have two Supreme Courts – one to handle disputes, and one to handle only constitutional questions. In France, for example, the constitutional court has to look at and pass on all legislation before it is signed into law and becomes effective. And that is just one example.

Israel can learn much from other models. But guess what? Maybe we could, too.