This November found lawmakers in Washington and Jerusalem caught up in a matched pair of high-profile disputes, unrelated but remarkably similar, that showcase the sort of right-wing extremism snarling the people’s business in the two capitals.
In both cases, conservative lawmakers were out to block high-level appointments in the justice system. In both cases, conservatives tried to cloak their opposition in procedural technicalities, but made it plain that their real objections were ideological. Underlying both cases is a quandary that sets the two nations apart from other Western democracies: Both political systems are held hostage by far-right minorities that don’t understand the meaning of the word “outvoted” and don’t accept the basic legitimacy of views they dislike.
The dispute in Washington involves the appointment of judges to the U.S. Court of Appeals for the D.C. Circuit, the nation’s second most powerful court after the Supreme Court. It’s the place where challenges to executive-branch regulations are heard. As such, it’s the main address for legal efforts to thwart a president’s agenda, as President Obama has learned to his grief.
Three of the court’s 11 seats are currently vacant, leaving the court evenly balanced between Democratic and Republican appointees. That doesn’t reflect the actual ideological balance, though. Six retired judges continue to hear cases on a part-time basis, and five of them are Republican appointees.
With its effective Republican majority, the court has been a persistent thorn in the Obama administration’s side. Senate Republicans have filibustered every attempt by Obama to fill the three vacancies. They say the court’s caseload doesn’t justify the additional judges mandated by law. But they also say they don’t want Obama “packing the court” with “extremist” liberals. That would undermine its excellent reputation, as two conservative legal experts wrote in The Hill, for “careful legal reasoning and attention to detail.”
The Constitution, of course, permits a president to name judges who reflect his outlook. But today’s conservatives don’t consider a liberal Democratic outlook to be legitimate.
Democrats, furious, are closer than ever to abolishing the filibuster, at least in judicial nominations. It’s a move so provocative that it’s called the “nuclear option.” It signals an utter breakdown of civil debate in Washington.
UPDATE: The Democratic-controlled Senate, in a historic and bitterly fought rule change, stripped Republicans on Thursday of their ability to block President Barack Obama’s judicial and executive branch nominees.
The action fundamentally altered the way Congress’ upper chamber has worked since the mid-19th century by making it impossible for a minority party, on its own, to block presidential appointments, except those to the U.S. Supreme Court.
Obama, a former senator, praised the action, calling the filibuster “a reckless and relentless tool to grind all business to a halt.”–Reuters
The dispute in Jerusalem is different on the surface. It involves the selection of state prosecutor, roughly equivalent to America’s solicitor-general. The nominee, deputy attorney-general Shai Nitzan, is one of the stars of Israeli criminal justice, a fierce defender of the rule of law and a protégé of several former attorneys-general who later became chief justices of the Supreme Court.
He’s also Public Enemy No. 1 to much of the Orthodox community, which bitterly opposed his nomination. It’s the latest episode in a traumatic, ongoing debate over the meaning of the rule of law.
The state prosecutor oversees the nation’s district attorneys, but his best-known duty is prosecuting high-level government corruption. To avoid political taint, the candidate is chosen by a five-member search committee representing the Justice Ministry and the legal profession. The nomination then goes to the Cabinet for pro-forma approval. A similar process picks judges.
Nitzan joined the AG’s staff a year ago, after 15 years in the state prosecutor’s office. His specialties were national security cases and government scandals. He oversaw the rape prosecution of then-president Moshe Katsav and defended the state in controversial lawsuits over Shin Bet torture and targeted assassinations.
He’s best known, though, for overseeing law enforcement in Jewish West Bank settlements. He outraged the settler movement with actions like the mass arrests of pro-settler activists obstructing the 2005 Gaza disengagement, as well as the use of administrative detention against suspected West Bank Jewish terrorists. He allegedly ordered the interrogation of several leading rabbis on suspicion of incitement (none were ultimately indicted) for endorsing “The King’s Torah,” the 2009 book justifying the murder of Arabs.
Dozens of rabbis have signed statements denouncing him as an “enemy of Torah.” His home has been targeted by demonstrations and at least one break-in. In 2011 he was assigned a bodyguard after a YouTube video called for his assassination. His nomination for state prosecutor, announced November 19, brought howls of protest. Lawmakers from the settler-led Jewish Home party and the right wing of the Likud are calling him an “extreme leftist” who used his office to pursue a personal vendetta against settlers.
Nitzan is the latest in a long line of justice appointees, including judges and attorneys general, who’ve incurred the wrath of the right, the settler leadership and parts of the Haredi Orthodox community. It’s all part of an ongoing dispute over the legitimacy of Knesset laws and court rulings that rabbis say conflict with Orthodox ritual law. Issues range from dismantling settlements and due process for terrorism suspects to civil rights of Arab Israelis, religious freedoms for non-Orthodox Judaism and drafting of yeshiva students.
After years of defeats by judges who consistently uphold secular law, settler and Haredi leaders have more recently set their sights on changing the professional committees that choose the judges and prosecutors. The Nitzan nomination is just the latest rebuff, and for some conservatives, one of the most galling.
The issues at stake in D.C. appeals court battle aren’t the same, but the underlying conflict — a clash of warring value systems — is nearly identical. The D.C. circuit gave the Obama administration two signal victories, ruling Obamacare constitutional and permitting the Environmental Protection Agency to regulate greenhouse gases. On nearly every other front, though, it’s been a determined foe.
In the past two years alone, the court has overturned the Obamacare birth control mandate, struck down EPA rules on toxic air pollution crossing state lines, overruled a new FDA-ordered health warning on cigarette packages and ordered the Nuclear Regulatory Commission to move forward on a controversial nuclear waste disposal site.
It’s blocked several Obama recess appointments that were meant to fill vacancies that were crippling the National Labor Relations Board. It struck down an NLRB requirement that employees’ rights be posted in the workplace.
And, in perhaps most telling act of cultural rebellion, Bush appointee Janice Rogers Brown seized on a minor dispute over regulation of interstate milk sales last year to declare war on the modern regulatory and welfare state. Since the 1930s, she wrote in a stinging opinion — a concurrence that can now be cited in future court rulings — economic liberty has been “disarmed by a democratic process” that’s dominated by “powerful groups” who steal from honest businesspeople in pursuit of “redistribution.” The result of all this unconstitutional regulation and taxation, she wrote, is that “property is at the mercy of the pillagers.”
That’s the sober, cautious, “careful legal reasoning” the Republicans want to protect. The words may differ, but the music is universal. Fundamentalism sounds pretty much the same wherever you go.
Contact J.J. Goldberg at firstname.lastname@example.org
Jonathan Jeremy “J.J.” Goldberg is editor-at-large of the Forward, where he served as editor in chief for seven years (2000-2007).