‘Saving Democracy’ Is a Confidence Trick

By Michael Brendan Dougherty

Thursday, July 27, 2023

 

One of the necessary skills in life is making yourself immune to common and base confidence tricks. Most of us recognize the Nigerian letter scam as just that, a false promise of money to get you to give up your banking details to someone who then defrauds you.

 

But journalists and governments play confidence games with us all the time — if only we are able to spot them.

 

On Sunday the president of the United States offered his opinion, once again, to the Israeli government on that government’s own proposed reform of the judiciary. “From the perspective of Israel’s friends in the United States, it looks like the current judicial reform proposal is becoming more divisive, not less,” Biden is reported to have told Prime Minister Benjamin Netanyahu. “Given the range of threats and challenges confronting Israel right now, it doesn’t make sense for Israeli leaders to rush this.” It almost sounds like advice from one friend to another. But see if you can figure out the trick.

 

Israel passed part of its proposed reform the next morning. The bill prevents the Supreme Court from overruling the Israeli legislature on “reasonableness” standards. Essentially, the bill makes the Israeli Knesset a little more like the U.K. Parliament in this way. Another round of reform would change the judicial-selection process. Right now the Israeli Supreme Court has a great deal of say in selecting its own members, with input from cabinet ministers, lawyers, and members of the Knesset. The reform would give more input to elected governments.

 

But this issue, one purely about how the Israeli government operates, had become a surprisingly important issue to the American Congress. In a March 8 letter to Biden, 92 House Democrats urged the president to “use all diplomatic tools available to prevent Israel’s government from further damaging the nation’s democratic institutions.” The U.S. was “extremely troubled,” said the State Department, by the proposed judicial reforms, which it described as “particularly provocative and counterproductive.” Throughout these statements there were minor impeachments of the quality of Israel’s democracy under Netanyahu. Op-eds sprung up saying that if the reforms passed, then Israel would become more like Hungary or Slovakia — more inward facing and authoritarian. It’s a curious thing. Israel’s Supreme Court is one of its least “democratic” institutions, but the liberals in the United States defend what is a rather insular and deeply unrepresentative institution as if it were democracy itself.

 

It’s not the first time the United States has found itself intervening in reforms like this. Poland’s judiciary, like Israel’s, was a highly undemocratic institution; judges determined the composition of the judiciary rather than having judges appointed by elected governments. Poland’s attempt to reform itself to be more like most European nations or America, with elected governments appointing the judges, was deemed by the EU “a serious breach of the rule of law in Poland.” The U.S. State Department joined the European Union in warning Poland’s new populist-conservative government about its judicial reforms. The State Department held that it was an issue of Poland’s remaining a “strong and healthy democracy.”

 

Okay, okay, maybe you’re thinking that the U.S. just has a very strong preference that its allies have settled constitutional arrangements, and that they don’t reform or innovate in their essential function. But then, why didn’t we see the U.S. State Department or the White House fly into action a few years ago, when U.K. prime minister Boris Johnson attempted to have Parliament prorogued by the queen, only for the U.K.’s Supreme Court to rule it unconstitutional, subsequently giving Remainers more time to undermine Brexit? The ruling meant that centuries of the doctrine of parliamentary sovereignty were suddenly chucked out the window in favor of a completely novel standard that the sovereign could not prorogue Parliament if it was done for an “improper purpose” — a standard made out of whole cloth. Why didn’t we see the White House, the State Department, the Congress, and every organ of respectable opinion intervening?

 

Well, surely you’ve figured out the trick by now: Liberals protect themselves as a class, across governments and borders. They identify their unfettered control of the press, universities, and the judiciary with democracy itself, even if that control is maintained by undemocratic means. When the leading periodicals in America begin talking about “saving democracy,” they mean stopping elected conservative governments from using their normal powers to reform, disrupt, or alter unelected liberal bases of power.

 

The Israeli Supreme Court, as it exists, is captured by liberal and progressive jurists and acts as a check on elected conservative governments. Ditto Poland. It doesn’t matter that these are practically patrimonial guilds and highly unrepresentative. The judiciary is a highly coveted source of power, and the same U.S. Congress members who want to prevent Israel’s conservative government from reforming its judiciary are often anxious to drastically reform the U.S. judiciary, because they see it as conservative bulwark.

 

This mode of analysis is now being applied to the United States, as we see in the charge that Tennessee isn’t a democracy anymore either. It’s the same person who told you that Poland is no longer a democracy and informed you, falsely, that Hungary had suspended its Parliament and become a full-fledged dictatorship during the Covid emergency.

 

The conservative problem isn’t that we fail to imitate liberals. The U.S. shouldn’t be intervening heavy-handedly in its allies’ domestic political disputes for the simple reason that today’s losers in a democracy often become tomorrow’s winners, and they have long memories. No, the conservative problem is that too often, we take liberals at their word that their reputational-protection racket is synonymous with democracy itself.