Thursday, January 26, 2012

Obama, Healthcare, And Progressive Critics

The following review essay was just published in the Nation

It is hard to read Remedy and Reaction, Paul Starr’s remarkable chronicle of the hundred-year effort to legislate universal health insurance in the United States, without recalling Robert Gibbs’s tortured quip that Democrats who’ve denounced the Obama White House for having knuckled under to Republican principles or intimidation “ought to be drug-tested.” Nobody with a sense of history—that is, nobody who reads Starr’s book—could doubt how sensible and brave was the president’s effort to drive the Patient Protection and Affordable Care Act of 2010 through Congress. Nobody with a feel for the present moment should doubt how imminent is the threat to the act, how urgent it is for progressive Democrats to rally around Obama—and without all the condescending qualifications that “independents,” who flock away from allegedly weak or incompetent leaders, interpret as contempt.

Starr, who teaches at Princeton and, with Robert Kuttner and Robert Reich, founded The American Prospect, has written 300-plus pages of tightly woven policy description, narrative and polemic; but one needn’t be a wonk to benefit from the tutorial or detect an occasional sigh between the lines. Literary scholars speak of a pathetic fallacy, the idea that inanimate objects have intentions and feelings. Starr makes clear that various political commentators have been susceptible to a somewhat different fallacy, pathetic in its own way, that America’s desires can be fathomed through polling and that the president must somehow be at fault if a desire is not fulfilled, as though flawed legislative institutions, entrenched political forces, conflicting popular incentives, regional rivalries and sheer corruption do not shape political outcomes.

Starr learned his lessons the hard way. He closely advised the Clintons on health strategy in the early 1990s (he still knows and has debriefed key Congressional staffers). The centerpiece of Remedy and Reaction is a long section, full of illuminating asides, on the frustration of the Clintons’ plans. Starr shows that, even as Bill Clinton submitted his bill to Congress, some 70 percent of voters subscribed to the principles embodied in the legislation he proposed. Yet the bill didn’t come close to being enacted. True, Clinton was losing altitude by then, but to suppose his failure was largely a matter of leadership—you know, that he didn’t use his bully pulpit forcefully enough, the sort of gripe heard relentlessly on MSNBC, the Huffington Post and Daily Kos about Obama and the “public option”—is to suppose that willows really weep.

Obama’s actions were cannier than Clinton’s, but they also amounted to a profile in courage. When Obama came into office, Starr explains, only 11 percent of Americans thought reform would have a “negative personal impact,” but by August 2009 this segment of the population was trending to 31 percent. Both Rahm Emanuel and Joe Biden were urging retreat. Starr writes, “Obama not only resolved to go ahead; in September and again in the new year, the president took charge of the effort to steady the health-care initiative and prevent it from careening off the tracks.” Nor was the final bill anything less than what might reasonably have been expected, filling as it did the negative space left by four generations of government programs and serial compromises. Starting with clean sheets of paper was never realistic when one-sixth of the economy was at stake.

Starr’s great fear is repeal of the Affordable Care Act, which would not only deny healthcare to more than 30 million people but would cast doubt on whether “Americans will ever be able to hold their fears in check and summon the elementary decency toward the sick that characterizes other democracies.” Obamacare, in short, was healthcare reform’s best—and last—shot, and it would be unconscionable for liberals to remain cavalier about its defense, or Obama’s, for that matter. It’s past time to discard the misguided assumption that in a better economy, or with more of “a fighter” in the White House, something like a Canadian-style single-payer system might have been (or might sometime fairly soon be) enacted.

Read on at the Nation's website. Or download a pdf.

Saturday, January 21, 2012

A Night At The Opera

Kurt Weill
Sidra and I went to see the Israeli Opera's performance of "The Rise and Fall of the City of Mahagonny" a couple of nights ago, which, like other Kurt Weill and Bertolt Brecht collaborations, was an odd combination of the sophomoric and prophetic, musically interesting without being moving--yet, days later, haunting.

I won't go into the dystopia Weill and Brecht present us. I'll say only that it is a burgeoning city in the American desert, built up almost overnight, whose businesses sell nothing but food, drink, sex, gambling and spectacle (that is, boxing). The buyers are ordinary stiffs who have earned their bankrolls through dignified but exhausting physical labor; our hero is a lumberjack from "Alaska." They have come to Mahagonny to let things rip. This is payback time, they guess, and lose themselves in gluttony and whoring.

The whores, in turn, are women freed from (what Brecht, an evangelical Marxist) seems to consider bourgeois constraints and have a kind of spunk that often seems more admirable than pathetic, which the score (especially the famous "Moon of Alabama") reinforces. All are finally worn out by cynicism, far more than by any work or memory of work. The only thing that gives life meaning (if that's the word for it) is the fear of mass death from a great natural storm, which narrowly misses the city in the opera, but also leaves the inhabitants empty of hope.

I naturally assumed, before reading the notes in the playbill, that Brecht and Weill managed to write this together when the got to the United States in the 1940s, though the former, I knew, found himself in Hollywood and the latter in New York. I figured they somehow got wind of Las Vegas taking shape in Nevada, near the Hoover Dam, and Mahagonny was a kind of satire of that emerging city, a useful embodiment of where the bourgeoisie takes us.

I was a little shocked to read that work on the opera actually began in 1927, and was first performed in Berlin in 1930. Shocked, because Mahagonny was just an imaginative projection from things happening all around Brecht and Weill in Berlin, not America. It was Brecht's "Pottersville," the nightmare place George Bailey found himself in when he envisioned a world stripped of decency. The opera was not a specific satire of America but a general warning about human nature, well, human nature under "capitalism." (The ruinous storm Brecht and Weill assumed people needed to give themselves a kind of consoling drama was not the Second World War but the First. The nightmare was even worse than the pair could imagine.)

Bertolt Brecht

I CAN'T QUITE explain why seeing the opera in Tel Aviv in 2012, knowing it was dreamed up in in Berlin in 1930, touched me the way it did. In part, it was simply the irony that operas like "The Rise and Fall of the City of Mahagonny" almost certainly had an effect very different from the one Brecht and Weill were hoping for. The Nazis came to power largely because, in the middle of a shattering economic crisis, Hitler was able to spread the idea that "the Jews"--not capitalism in general--were profiteering from decadence. ("The part which the Jews played in the social phenomenon of prostitution, and more especially in the white slave traffic, could be studied here better than in any other West-European city," Hitler rails in Mein Kampf.)

But I suppose the thing that got to me, in a scatter of feelings, was that 1930 was also the year Ben-Gurion formed Mapai, which promised Palestinian Jews a kind of permanent "Alaska," quite different, he thought, from the fate of Jews in the bourgeois diaspora. Yet Israel's current prime minister is bankrolled by an American sidekick, Sheldon Adelson, who made his fortune spreading Mahagonny around the globe. He is the closest living thing the audience might imagine to the grotesque "hotel" owner, Leocadia Begbick, whose manipulations and creepy self-pity cast a shadow over the entire production. (I was told by someone who knows that Adelson introduced himself to George W. Bush in the Oval Office as "Sheldon Adelson the third." When Bush said that he thought Jews did not name children in this way, Adelson responded: "The third richest man in America, and soon to be the second.")

Adelson's fortune has been used to subsidize Israel's largest circulation tabloid, given away for free, pushing an agenda of "markets" and "toughness," all-Bibi-all-the-time. It is also helping to revive Newt Gingrich's surging campaign, of course, though I suspect a great many of the latter's voters in the Republican primaries think of Adelson and his casinos pretty much the way Germans who voted for the Nazis for the first time in 1931 felt about "the Jews." Anyway, bloggers can turn on ironies only so far.

The symbolism is a little contrived, I admit, but it was hard to leave the theater not fearing that the bad guys already won, that Brecht's prophesy proved more powerful than Ben-Gurion's. Then again, this was the wonderful Tel Aviv mall for the performing arts. It was not an accident (as evangelical Marxists like to say) that this opera was chosen, of all times, now. Besides, just last summer the streets of the city for were alive with tens of thousands of young people hungry for "social justice" and excoriating the consumerism Mahagonny brought to an exaggerated climax.

Then again, again, when masses march for meaning and social solidarity, as in Berlin in the 1930s, it is not usually social democrats who keep their place at the head of the line. Soon after the first performance of "The Rise and Fall of the City of Mahagonny," Brecht and Weill would be running for their lives. Weill's parents made it to Tel Aviv, where the story, as it were, continues.

Monday, January 16, 2012

Justice For All: The Numbers Speak

I wrote last week about a Knesset bill to determine in a new way the composition of Israel's High Court of Justice. This would tip the needle toward government power over the court, presumably, a last bastion of liberal-democratic law in a land without a constitution. The bill in question was withdrawn in the end, as Netanyahu appeared to bow to objections by moderates in the cabinet (Dan Meridor, Benny Begin, and others); and withdrawing the bill set off a round of last minute horse-trading among members of the appointments committee.

In effect, High Court President Dorit Beinisch and Justice Minister Yaacov Neeman each got one person--the former, a known liberal, the latter, a known settler--and they also agreed on two "moderates" who were less well known (though one is known "Mizrahi"). Instead of high-handedness, one hand washed the other--and it's hard to say just what is worse when choosing members of the highest court in the land.

In any case, the first decision made by the High Court in the wake of this tussle leads one to wonder if the fight for civil liberties in Israel is really going to be winnable. I am speaking, of course, of the amendment to the immigration bill that refuses Israeli Arab citizens the right to bring in their wives or husbands to the country, as Jewish citizens do--especially if spouses are from the occupied territories.

I won't go into the details, which Haaretz's Gideon Levy does here, and with continuing passion. Suffice it to say the decision vividly underlines how grotesque it is becoming for Israeli leaders to present their country as a Western democracy while putting off final status negotiations and the confederative solutions these will (as I argued in Harper's) inevitably lead to--the only way to square circles of citizenship, the right of return, and so forth. The court, like the "consensus," generally confuses Jewish state with Jewish majority, and demographic hegemony with "security." This cannot go on without internal explosion or international isolation, or both.

THEN AGAIN, ONE has only to look at how the system (if that's the phrase for it) of justice works in the West Bank to know that justice has been anything but blind for a generation. And no organization has looked into that system, more thoroughly than the somewhat ironically named Yesh Din, or "There is Justice (or, perhaps, Verdict)." The chief legal counselor to Yesh Din, the indomitable Michael Sfard, recently prepared a summary report on how criminal complaints have been handled since Yesh Din began its work in 2005, which he kindly sent over to me. (Readers of Hebrew can get a pdf. of the presentation here.)
  • Of the total number of crimes committed against West Bank Palestinians, about 38% involved gunfire, 42% damaged property, and 15% encroachments on private land.
  • 91% of complaints to police resulted in no indictment: 86% of violent crimes; 96% of property crimes. Of 127 cases of olive groves being uprooted between 2006-2011, one case resulted in an indictment.
  • 66% of cases were closed because police claim the perpetrators were unknown, 24% because there were no (credible) witnesses. Under 4% of crimes brought to the military police were investigated. (In over 90% of cases, settler alibis were accepted without corroboration or further investigation.)
  • Between 2007-2011, 267 complaints were filed against soldiers; in just 30 cases (about 11%) was it decided to open an investigation.
  • 13 cases of settlers building on Palestinian private land resulted in 11 High Court injunctions; 5 of these have been violated without consequence. Land illegally built on for settler roads were retroactively expropriated for public purposes.       
The numbers speak for themselves; they are deeply disturbing. A social contract is destroyed when the rule of law loses its moral prestige. The idea that Israeli judges and police can just go through the motions in the occupied territories but otherwise take justice seriously is implausible, as, come to think of it, the decision regarding the immigration law reveals.

Sunday, January 15, 2012

Pervasive Feelings And Class Warfare: A Coda

Many people have written over the past couple of years--including faithful (and valued) commentators here and at TPM in response to my last post--that President Obama blew it pretty much from the start by failing to adopt a more "populist" line. This is code for other code: populist means more committed to fighting for the "economic interests of lower-income people," which in recent days has come to mean, rather misleadingly, the other 99%.

Sure, Republicans and Democrats from red states blocked him on almost everything he tried, from climate change to immigration to infrastructure spending. But Obama after (or is it before?) the healthcare reform "failed to make the case" that the federal government could be a lever to redress the grotesque inequalities that have grown up over the past generation.  It was the economy, Stupid. Okay, not Stupid, Timid.

The background premise is that "class" trumps (or, with the right leadership, could be made to trump) other divisions. Many progressive Democrats of a certain age (me, too) acquired this premise reading socialist classics in the 1960s, and it's circulated like an antibody ever since, reinforced, oddly, by the sincerity (or vanity) of professional economists of all kinds.

If you appeal to citizens' "bread-and-butter" interests, presumably, you've got them. Obama's task was to rally "ordinary working people" to confront those whose income is 10 or 20 times theirs. Obama "failed to connect" with "lunch-pail Democrats" because he allowed himself to be identified rather with Robert Rubin's acolytes. (Obama's "they-cling-to-guns-or-religion-or-antipathy-to-people-who-aren't-like-them" remark didn't help, though it was a window onto his understandable apprehensions.)

LET'S LEAVE ASIDE the question of how many "ordinary working people" actually remember (or have even heard of) Robert Rubin. Leave aside those who loudly identified Geithner, Summers, etc., as Obama's Wall Street tar babies, and over policy differences about how to deal with "toxic assets" (remember them?) that now seem rather trivial. The serious question, with Republicans whining about "class warfare," is what exactly is a class, and between which classes does class warfare generally get fought?

This is not the place for a full answer, but I think I should add a coda to my post. It is that populist appeals would not likely have been interpreted by "ordinary working people" in quite the way the way the theory calls for. (Marx was more astute about the bourgeoisie than he was about "the proletariat," too, but that's another story.)

America's first African-American president, who happened to know at first hand what was the matter with Kansas, also knew not to look for a definition of class only in a book of Studs Terkel's interviews. Implicitly, he looked also in J. Anthony Lukas's disquieting classic, Common Ground, which depicts Boston-Irish working class fears during the busing riots.

Obama knew, in other words, that class warfare has not generally been fought between the working class and "the ruling class" but between the working class and the (alleged) underclass. This means between ethnic whites and exasperated blacks, Southie and Roxbury, the docks against the inner city--what Obama saw working the streets of Chicago, by the way. Why is this so obvious when we watch "The Wire" and so hard to see when we write blogs for The Huffington Post?  

No doubt, Terkel could still find a great number of ethnic white working people who'll perceive brotherhood in shared economic interests, without being prone to racist simplifications; 35-40% still say they'll vote for Obama. This many people is a moving testament to the success of the civil rights movement, when you think about it. But 60% of ethnic white males have now turned against Obama, reverting to form, that is, to the pattern we've had since busing, the busting of unions, affirmative action, rustbeltization--that is, since Ronald Reagan. Again, Obama won with under 53%. This much of a shift among lunch-pale ethnic whites and he will lose.

Which is why Newt Gingrich is talking about "food-stamps," of all things. Romney is talking about "Europe." This guy? Not us. Without this residual class resentment, Fox-News is unimaginable. Obama broke the mold with this group in 2008, not by stressing economic egalitarianism per se, but by speaking about unity, individual responsibility, the "America" his grandfather fought for--by advocating for a more predictable middle class life (health insurance, student loans) and an administration run by someone more responsible than the person who'd choose Sarah Palin.

This was Obama's promise and he kept it. Had he come out of the blocks attacking Republican leaders and free enterprise principles, that is, without first showing how badly he wanted, and embodied, "bipartisanship" (also code for a hybrid of black and white)--had he radicalized his "narrative" and advanced the claim that government action was needed to (how did he put it to "Joe-the Plumber"?) spread the wealth--he would not have spooked Wall Street nearly as much Main Street. He would have been suspected of reverting to form himself, a Jesse Jackson in John Kerry's clothing.

The point is, Obama might have expected progressives to be shrewd enough to understand the dilemma he faced. That ethnic white working men do cling to what he was overheard saying they did; that, by implication, "ordinary working people" respond to a strong leader, yes, but so long as that leader looks like Giuliani or Christie. If you are black in America, they have to believe you are brave, sincere, a unifier and wicked smart.

This is where we especially let Obama down. We made "independents" believe, with unearned superiority, that we could have done better.

Tuesday, January 10, 2012

President Obama And Pervasive Feelings

Today is the New Hampshire primary, Romney is calling for "leadership," and he seems to be getting away with it. He's not really calling attention to his own qualities, since he's rather slavishly followed his market the way a person who thinks he's a corporation would. No, Romney is tapping into a pervasive feeling--or what reporters, it seems pervasively, call a pervasive feeling--that Obama's leadership has failed. "Leadership" is for the new Romney what "law and order" was for the new Nixon. He's got (as we sang while Nixon shrugged) a ticket to ride.

The question is, why this feeling about Obama? Really. Why? How has it become so hip to doubt Obama's leadership even as--here comes another cliche--"people like him"?

I won't now recount all the accomplishments of the Obama presidency, certainly by comparison with any president in living memory. Others have done a good job compiling these (check out this list to 2010, before Libya, etc., and take a few minutes to contemplate it). I will myself be publishing a review essay in The Nation shortly, reconsidering his greatest accomplishment, healthcare reform, which took a hundred years to enact.

Still, Obama's re-election seems anything but certain--Florida, Ohio, Pennsylvania, etc. all seem within Republican reach--and he's polling around 45% (he won with only 52.8%). If he loses, the "leadership issue" will likely be the critical one, which is a little like saying he will lose because he's widely thought to be a loser.

THERE IS ANOTHER way of looking at this, of course. Almost from the moment he was elected, Republican leaders in Congress announced that their mission was to obstruct and defeat him--not only on issues where they might have genuine disagreements, but also on things they generally endorse but might improve the economy, like roads and bridges. The Republican fear, quite openly expressed, was that Obama might get credit if things improved.

It was as if a surly, jealous crew (one that could not be fired, Mr. Romney) had announced at the outset of a voyage that they intended to sabotage the ship's engines to make the captain look bad. And yet the passengers, once at sea, and with the ship foundering, do turn on the captain. What did congressional Republicans know about American politics that allowed them to assume they could indeed get away with this?

THE ANSWER, OR so we are told again and again, has to do with unemployment. "No president with an unemployment rate above etc., has ever etc." So the first charge leveled against Obama is that he spent too much time on healthcare when he should have focused on the economy. Sure, his policies may have allowed us to avoid a depression, and saved the auto industry, but healthcare? The vast majority of people did not really benefit from the healthcare reform, so the argument goes, since only 30-40 million are uninsured. But all are affected by the squishy employment numbers (less squishy now than last month, but never mind).

A moment's thought reveals the nonsense here. Of course everybody benefits from the health reforms (preexisting conditions, etc.) but especially those who risk unemployment. Besides, if people who are insured don't see why the health reforms are for them, why should the people who are employed care about the unemployment numbers? If their attitude to the first problem is "I-worry-about-myself-I'm-OK-fuck'em," why is this not their attitude toward the second?

Which leads to the second charge, that Obama has not put himself on the side of the people who are falling out of the middle class--you know, the charge leveled by Velma Hart, who told the president to his face, oh so photogenically, that she was "exhausted" defending his administration. Never mind that the squeeze on people like Hart has more to do with a generation-long shift, where digits in companies are being replaced by digital technology. Never mind that Obama has said dozens of times that America must invest in education and infrastructure to prepare. No, Obama, in courting "bipartisanship," or appointing Larry Summers, etc., put himself on the side of the bad guys.

What should he have done? Now things become vague. Nationalize the most reckless banks, or indict Wall Street CEOs, anticipate oil spills. Anyway--and now comes the third charge--he "squandered an FDR moment" precisely by trying to cut deals, even if this meant currying favor from powerful interests. As if TARP (which Obama reluctantly endorsed while campaigning) did not work. As if the private sector is not 8-9 times greater than the public, and to get out of the crisis Obama knew he would have to calm people who had benefited from absurd inequalities over two generations, whatever he privately felt about them. Oh, and as if FDR did not reconcile himself shamelessly to the Jim Crow South to make deals with southern Democrats.

THE FOURTH CHARGE now comes in. Okay, maybe he did steer the country away from a depression, etc., but unemployment remained high because the stimulus was too small. Never mind that administration figures like Larry Summers, of all people, were saying again and again that it was better to err on the side of too much than too little. Never mind that Obama got something twice as big as what Nancy Pelosi originally thought feasible. Never mind that Obama did come back to Congress for more in the fall of 2009 and was told he could forget it.  Never mind that he never had a day in office--not one!--in which he had the votes in the Senate to simply do what he wanted. (Ditto healthcare and the late, lamented "public option.")

And this leads to the fifth (and for now final) charge. Obama had a bully pulpit; if only he had used it more aggressively, he might have lost Congressional votes, sure, but he'd also have "changed the narrative." There is a measure of truth here, though Fox-News gives a whole new meaning to the phrase "bully pulpit." Then again, he was our first black president and, as commander-in-chief, inherited a quarter of a million troops in harm's way. What would have been said about him had he polarized the country, instead of trying to project unity and reasonableness in 2009 and 2010? He could not overturn American capitalism just because a million people held candles for him the night he was elected. He called the Cambridge police stupid for arresting Skip Gates (which they clearly were) and who cared about the reason he called the press conference?

Nevertheless, the charge just grew that Obama was timid, or did not know how to negotiate, as if the result of negotiations do not reflect actual power relations, and he was something less than half of the government. The culmination of his fecklessness, we are told, was the debt-ceiling crisis, in which Obama "lost," or should have invoked the Fourteenth Amendment, as if that fight did not actually set him up to fight the current fight and "change the narrative"; as if our first constitutional law professor in the White House does not know the limits of presidential constitutional authority. Let's call it the "Jon Stewart disappointment" (reinforced by his erstwhile TV buddy, Anthony Wiener), which finally defined the hipness of disappointment. In this view, the candidate who implied he was going to change Washington just started working the system. He wasted time on bipartisanship.

Obama, to continue, refused to see the meanness, fanaticism, and venality of congressional Republicans. (Stewart then called a half million people to the mall in Washington and gave them a pale version of the very speech valorizing bipartisanship that Obama gave to the Democratic Convention in 2004.) The flip side of this is the "Tom Friedman disappointment," which implies the need for the very bipartisan "grand bargain" Obama has been trying to nudge Republicans to accept, and whose inference for action, you'd think, is to rally around Obama, but for Friedman seems to mean a third party candidate like Michael Bloomberg (who presumably would get along better Jim DeMint.)

ONE THING THAT all of these charges have in common is that they have been picked up by the mainstream press, so that the question of leadership per se is now always there to embarrass Obama. Watch Steve Kroft's creepy interview. ("Isn't it your job as president to find solutions to these problems, to get results?") The other thing is that they all originated with the progressive left. What Obama underestimated was not the venality of Republicans, but the capacity of prominent Democratic supporters, people who pride themselves for being progressives, and who seem to forget what it was like to live under Nixon, Reagan and two Bushes, to demean him.

And progressive democrats also underestimated their own power to influence things. Sure, they constitute a rather small percentage of the total vote. But unlike the leaders of the Tea Party, the leaders of the progressive wing of the Democratic Party are disproportionately concentrated in elite universities, media, civic organizations, and new economy businesses. When Paul Krugman's face is on the cover of Newsweek not two months after Obama took office next to the caption: "Obama Is Wrong," it gets the attention of the press in a way that a guy in a funny hat at a county fair does not.

What Obama was presumably wrong about was the plan for bailing out the banks. Krugman wanted something like nationalization, and tarred Obama with Wall Street connections. You decide who was wrong. About the Huffington Post, MSNBC, etc. during the 2009 summer of the public option, or during the debt-ceiling crisis, the less said the better. Today, 42 % of Americans think Obama favors Wall Street. Who  started that snowball?

The thing recalcitrant Republicans knew all along, you see, is that independents are basically flockers who will vote for a strong leader, who is on their side, which is another way of saying a leader who promises to be "a winner." And Republican "strategists" also knew that the press is lazy and so enamored of the horse-race that most will report on "enthusiasm" rather than on what policy or integrity there is to be enthusiastic about. Rather, the press will satisfy itself with Nate Silver's correlations--wow, 8% unemployment, so the stats say you should lose!--because causes are too hard. They will also look for evidence that you are a loser--and look no further than "disappointment" from the very people you ought to be inspiring.

There is much more to say here, but I won't. The point is simple: there will be an election in the fall, and "independents" will decide it. There is no question whether they lean to Obama's policies, which generally poll much better than his "job performance." But if Obama is going to be reelected, he must not only lead (which he has), but also appear to be a leader. Here, the relentless condescension of the Democratic progressives has been a terrible burden on him.

I had my own hopes for an Obama presidency regarding the Middle East, which have not been realized--not yet, in any case. But on the whole, he's been the sanest, most intelligent president of my lifetime, and we are at a pivotal moment. There are nine months to close the "enthusiasm gap." And that is our problem, not his.

Monday, January 2, 2012

The Law In These Parts

The Knesset is about to pass a bill that will amend a little restriction on the way the Chief Justice of the Supreme Court is elected. From now on, the candidate for Israel's highest judicial post need not be at least three years before his or her 70th. birthday, hence, the age of mandatory retirement. The Knesset is also set to pass another bill that will change the weight of the various electors on the Judicial Appointments Committee, so as to tip the balance in favor of the Justice Minister.

The first change will allow Asher Grunis, known for "rightist" views, to be elected head of the court. The second would permanently transform the way appointments to the court are made, so as to strengthen the legislature's power over its composition.

ON THE SURFACE, these are fairly trivial changes. Okay, it is wrong to tinker with a law to accommodate a particular figure. But that figure may represent a class of people that, arguably, never should have been disadvantaged in the first place. Think of changing the U.S. constitution to make it possible for Arnold Schwarzenegger--and thus all naturalized immigrants, Arianna Huffington, say--to run for president. Who says an immigrant is not a real American? Similarly, who says a Chief Justice cannot contribute something substantial in two and a half years, or one and a half? And why should the legislature not have a decisive say over the composition of the court, the way, say, the Senate does in the U.S.?

As I argued here a couple of years ago, these questions miss the point entirely. Israel has no liberal constitution the way the U.S. does. I mean a constitution that protects individual human rights as a matter of law. This tinkering is a way of changing the legal status of liberal-democratic life.

Israel has a "basic law," The Law of Human Dignity, which the Supreme Court has been generally interpreting broadly so as to protect human rights on an ad hoc basis. Unlike other basic laws, this law can be repealed by a simply majority of the Knesset, but no government has (yet) been brazen enough to repeal it. So long as the Law of Human Dignity exists, and no constitution exists, Israel will remain a place in which ordinary human rights are protected only if sitting justices have ordinary liberalism in their bones.

And here is where Grunis comes in, and ways of electing justices that promise more candidates with his cast of mind. Justices who think "Zionism" (the common word now for ultra-nationalism, protecting the settlement project, etc.) trumps individual conscience will open the door even wider to the tyranny of the majority. The superb documentary, "The Law In These Parts," shows that, at least with respect to Palestinians in occupied territory, the judiciary has already compromised civil rights to the point that it has become window dressing on a repressive and often brutal regime. Moving the needle on Israeli "leftists" could easily come next, especially now that military courts can try them.     

IT IS TRUE that the Israeli legal community has been, on the whole, far more liberal than the public. It is also true that the legal community has been, correspondingly, more highly educated, and more "Ashkenazi," than the public. And it is true, finally, that election to the Supreme Court has in the past been something like election to the leadership of a guild by its members: judges, the heads of the Bar Association, etc. have constituted a self-perpetuating elite choosing justices the way tenured professors choose deans.

But these sad facts have kept Israel inside the green line a more or less free country much the way the tenure system has kept its universities more or less bastions of free thought. Liberal-democracy has been protected by more liberalism, less democracy. Passage of these changes will portend the transformation of the Supreme Court into an instrument of a rightist coalition that is not soon going away. Without a liberal court, civil rights in this country will go into eclipse with the eerie, perceptible speed of the sun setting over the Mediterranean.