In America, the Democratic Party is in a state of tumult following its defeat in last November's presidential and Congressional elections, as voters deepened Republican control over both the legislative and executive branches of the government.
Because in the US judges are appointed by the president and approved by the Senate, over time they inevitably reflect majority sentiment. Democratic presidents in the 1960s and 1970s ensured a liberal bench for a generation. Today's Republican control over the executive and legislative branches – together with the aging of Supreme Court justices – holds the prospect of a strong Republican majority on the bench that, like the current Democratic preponderancy, will give Republicans control over the judicial system for the next generation.
In the aftermath of the elections, Democratic spokesmen and leaders spent great energy insulting the electorate that rejected them. Now, however, it seems that voices of reason are beginning to be sounded.
In an op-ed in Wednesday's New York Times, Paul Starr, the editor of the liberal American Prospect magazine, argues that the Democrats' controlof the bench deadened its members and leaders to the sentiments of the majority of voters. In his words, "For decades, many liberals thought they could ignore the elementary demand of politics – winning elections – because they could go to court to achieve the[ir] goals on constitutional grounds." Starr insists that "Rebuilding a national political majority will mean distinguishing between positions that contribute to a majority and those that detract from it."
In Israel, things are a bit different. Since 1977, the only way Israeli leftists have been able to compete in national politics has been to espouse right-wing views for electioneering purposes. This has not led them, however, to engage in a debate similar to that now taking place among American Democrats. This is because in Israel the Supreme Court effectively appoints both its own members and the justices of the lower courts. With a perpetual majority of increasingly radical leftists sitting on Israel's bench, the Israeli Left will never lose its ability to push through its agenda – in spite of its lack of support among the public.
A case in point is the High Court of Justice's abuse of IDF Deputy Chief of Staff Major General Dan Halutz. Last May, a group of radical leftists banded together to petition the court to suspend Halutz's appointment to his current position, claiming that he wasn't sufficiently "moral." The proximate cause of the concern was a newspaper interview that Halutz granted in August 2002, in which, as commander of the Air Force, he defended the IAF's bombing of Hamas terror commander Saleh Shehadeh's house in Gaza, despite the fact that in addition to Shehadeh, 15 civilians also died in the blast.
The court's decision to hear the case was absurd, both because in no normal country would such extremists have standing on this kind of issue and because in a properly functioning democracy, courts rule on legal, not moral, issues.
After publicly humiliating Halutz last month by demanding that he write an essay for the court explaining why he considers himself a moral person, the court went a step further. While ruling against the petition on Wednesday, Justice Edmond Levy wrote in the court's decision, "The tone of the interview was regrettable, as were some of the things that were said, which would have better been left unsaid, especially by an IDF general who was the commander of the Air Force."
Levy's behavior in this case – where, prodded by radicals who have no significant base of public support in Israeli society, he used the Supreme Court as a political reeducation camp – is an affront to the very notion of the rule of law in Israel. Given the leftist judicial self-appointed fiefdom which, engaged by left-wing individuals and groups that have little in common with majority sentiment in Israel, transforms politically radical viewpoints into law, the question arises of whether Israel can be considered a democracy governed by the rule of law.
This question is becoming increasingly urgent in light of the government's intention to use IDF forces to conduct the expulsion of Israeli citizens from their homes and communities in the Gaza Strip and northern Samaria. Recently, a number of army officers, reservists and lawyers have begun asking whether it is legal to use the army to conduct this mission. The IDF is legally responsible for protecting Israel against enemy forces. It is impossible to argue that the citizens who are slated for expulsion by the army are enemies of the state. The emergency call-up orders for reservists whom the government now intends to order the IDF to mobilize – either to carry out the expulsion or to replace regular army units as those forces are diverted to the settlements – would, according to these sources, be illegal on their face.
According to the argument, emergency call-ups, by law, can only be instituted in times of war or grave security threat. Since the settlers pose no such threat, it is not legal to utilize such orders for this purpose. Even Haaretz's leftist legal commentator, Zev Segal, wrote last Friday that it is not at all clear from a legal perspective that "the IDF should carry out the evacuation of civilian settlements."
In discussing the legality of refusing to carry out orders to evacuate settlers, Israel Radio's leftist legal commentator, Moshe Hanegbi, argued this week that it is impossible to defend such refusal, given that soldiers have legal recourse in the form of petitions to the High Court of Justice.
However, in light of the self-evident political slant of the court, many reservists argue that Hanegbi's contention is irrelevant.
Given their lack of faith in the court's ability to interpret the law fairly, those who reject the use of the army for the political purpose of expelling civilians from their homes and communities have, in their view, no recourse other than to conscientiously object to their orders and serve whatever punishment the IDF metes out to them.
For the record, I feel compelled to note that I do not support the calls currently being sounded by prominent leaders of the Israeli communities in Judea, Samaria and Gaza for soldiers to refuse orders to evacuate the communities in Gaza and Northern Samaria. My view is grounded in a clear recognition that citizens, regardless of the irresponsible behavior of their politicians, must leave the IDF, the only force that guarantees Israel's survival for all its citizens, firmly outside of politics.
Yet, irrespective of my views, the phenomenon of soldiers who will indeed refuse to carry out orders to evacuate these communities is real and widespread. It does not merely or mainly manifest itself in the calls of irresponsible rabbis and right-wing spokesmen. The fact of the matter is that thousands of reservists are quietly telling their friends and colleagues that they intend to be sick or out of the country when they receive their call-up orders. And this is alarming.
It is alarming because, more than anything else, it is the consequence of a serious systemic failure of the mechanics of Israel's democratic system. As a conscripted force, the IDF owes its functioning to a clear social compact it has made with Israel's citizenry. The foundation of this compact is the assumption that the IDF is the manifestation of the collective will of the Israeli people to serve in their nation's defense. It is because the IDF has to date upheld its part of the social compact that the overwhelming majority of Israelis willingly and happily submit themselves to the draft. If the IDF is used for any function other than national defense that is not ac
ceded to by a clear majority of Israelis, it will effectively undermine this compact.
In 1947, Winston Churchill famously quipped that "democracy is the worst form of government, except for all the others that have been tried from time to time." Democracy can be cumbersome and irritating and messy. It demands that citizens remain engaged in the activities of their government. It requires that civil servants, politicians, justices and law enforcement agencies all stand accountable for their actions, both in the face of duly enacted laws and in the court of public opinion as it manifests itself at the ballot box.
Democracy forces politicians to engage in robust debate to win public support and legitimacy for their actions and it demands that the courts both protect minority rights and reflect the values and interests of the majority when they interpret the laws legislated by lawmakers. It is much more difficult for politicians operating democratically to steer the ship of their state in new directions than it is for their authoritarian counterparts. Yet the fact that this is the case is one of the beauties of the democratic system. The robust public discourse of a democratic society is the strongest safeguard against the adoption of irresponsible, dangerous or corrupt polices by the government.
The Left's perpetual control of the courts has to date insulated it from the need to contend with the fact that its ideology and policies cannot garner the support of a majority of the public. As a result, it has never faced a reckoning like the one with which the US Democratic Party is currently contending.
But by forcing a politicization of the military, the government, which has adopted the minority policies of the Left, is doing more than simply advancing a plan that was overwhelmingly rejected by voters in the last election. It is endangering the very lifeblood of Israeli society – the social compact that stands at the foundation of the military, which is the sole guarantor of the survivability of the Jewish state.
Originally published in The Jerusalem Post.