Yesterday, Benjamin Netanyahu announced that he plans to take “active steps” toward implementing reforms of the Israeli judicial system. Enacting such changes to the Jewish state’s de-facto constitution would necessitate compromise between defenders and critics of the status quo. While acknowledging the vast and important differences between the two countries, Samuel Estreicher and Tal Fortgang believe Israel could learn something from the American system of checks and balances. (Free registration required.)
First, take the proposed reform that would enhance political control of the appointment of judges. Political control requires checks and balances, which we think can be provided by an amendment to Israel’s Basic Law enabling two-thirds of the Knesset (80 votes) to override an appointment (preferably after a hearing). The prospect of such override would inform the selection of judges at the outset so that work of selection would not be undone at the other end.
The second serious area of contention, legislative override of Supreme Court decisions, has drawn the most criticism, but does not require a terribly complex solution. Here, we suggest the Basic Law require that only a two-thirds supermajority of the Knesset (80 votes) can override the Supreme Court’s constitutional and human-rights rulings (as opposed to statutory, contract, tort, and other everyday law decisions).
This parallels the amendment process necessary to override constitutional decisions in the U.S., and the widespread buy-in amenders must earn before taking such a dramatic step.
There is sound political theory behind this proposed arrangement. A supermajority requires serious consensus, which in turn requires persuasion. These new requirements would encourage coalition-building and moderating proposals until they are acceptable to factions with different principles and priorities.
Read more on New York Law Journal: https://www.law.com/newyorklawjournal/2023/06/06/a-basis-for-enduring-compromise-on-judicial-reform-in-israel/