The United States today is in almost every respect a more unpleasant country than the one I left over 35 years ago – less optimistic, less confident, and more bitterly divided. For the first time in American history, parents no longer contemplate a brighter future for their children than for themselves.
There are no doubt many reasons and many culprits. But I would place the political Left pretty close to the top of the list. The Left's denigration of American military strength and its leadership role in a unipolar world after 1989 and the denial of American exceptionalism – i.e., the United States' unique history as a nation not based on blood and soil, but on allegiance to a particular system of government in the form of the Constitution – have come at the expense of national pride.
Finally, the Left's ruthless will to power, with scant regard for the rules of the game or the levelness of the playing field, has made American politics far more divisive than I remember. In 2012, President Obama pursued a campaign strategy of stitching together a slim majority based on a variety of identity issues, such as the trumped up "Republican war on women," each aimed at a different demographic, while ignoring the major issues facing the United States and the world. Hillary Clinton has already made clear that she intends to replicate Obama's 51% strategy.
The situation in Israel, I would argue, is dramatically better. Despite facing threats to its existence without parallel in the world, Israeli Jews remain far more optimistic about the future than Americans. That optimism is reflected in fertility rates nearly one child per woman higher than any other OECD country. The dangers of missile attack and now a nuclear Iran (courtesy of Obama and Kerry), threaten all Israelis equally and create an element of common identity.
NEVERTHELESS, IT MUST BE ADMITTED that Israel presaged America in two respects that have had much to do with the increasingly bitter divide in America: a mainstream media mobilized on behalf of one political perspective and an overweening judiciary.
Democratic government, defined in terms of placing the lawmaking power in the hands of the people's representatives who must stand before the voters at regular and relatively short intervals, lessens social tensions. As long as the playing field is level and the rules adhered to, every voter knows that if his or her views do not prevail today, they may prevail in the future.
Democratic (or more properly republican) government depends on a number of societal institutions for its success, among them a judiciary that protects minority rights, in particular freedom of speech and press. That judiciary, however, must not turn itself via Constitutional "interpretation" into a super-legislature comprised of a handful judges. And the press must justify the freedom granted it by acting as a watchdog of the government in power and viewing the creation of an informed citizenry as a sacred responsibility.
For those who believe that the immediate triumph of their views trumps everything else, however, the rules of the game or proper institutional roles are of little importance. All that counts is winning, and whatever it takes will do. To get a sense of the mentality compare The New York Times editorials on the power to filibuster when Democrats in are in the majority (filibuster is sacred) and when Republicans are in the minority (filibuster is an outmoded holdover from the past).
Winning at all costs has long been the motto of Israel's mainstream media, whose leading figures have not hesitated to describe themselves as fully "mobilized" for a variety of causes. Even those who have held positions in public broadcasting have tended to treat air time as a private soapbox for the promotion of their political views. Thus Israel Broadcasting anchor Chaim Yavin once boasted that that only because of the media did the first intifada lead to Oslo.
After Binyamin Netanyahu's first electoral victory in 1996, Maariv's Ron Meiberg confessed, "Never were we so motivated to bring down the prime minister and hold him up for ridicule." As an example, two senior editors on the Mabat nightly news, spliced film of a Betar Jerusalem rally to make it look as if, Binyamin Netanyahu was waving and smiling in response to chants of "Death to the Arabs." When the disgraced editors were fired by the Uri Porat, director of Israeli Public Broadcasting, the National Federation of Journalist rallied to their defense.
But the mobilization began long before the election. When Bibi's opponent Shimon Peres uttered the words, "Stupid Arabs," in the presence of numerous journalists, in response to rioting by Israeli Arabs, the story went largely unreported, as the journalists all realized it would sink Peres's electoral chances, which depended on a large Israeli Arab turnout. (In a similar vein, when Court President Aharon Barak commented that a search for a Sephardi Supreme Court justice would diminish the quality of the Court, his comment too went largely unreported, lest the last bastion of Israel's Left fall into further disrepute.)
After the Rabin assassination, Limor Livnat stoutly defended the Likud against the charge of complicity in the murder on the popular Popolitika show, prompting the producer of the show, Aaron Goldfinger, to proclaim, "as long as I'm producing this show, there will never be another show in which the Right comes out on top."
Following the Israeli withdrawal from southern Lebanon, which gave rise to the Hezbollah threat, Hanan Naveh, the chief editor on the IBA's news desk at the time, boasted that he and two broadcasters – Carmella Menashe, IBA's military reporter, and Shelly Yachimovich, the host of the morning news show – had taken upon themselves the mission of getting the IDF out of Lebanon.
WHILE ISRAEL may have once been the democratic world's leader in a mobilized media, the United States has caught up and then some. Long gone are the days when the nightly news broadcasts carried any aura of objectivity or anyone believed The New York Times contains all the news fit to print.
Sheryl Atkinson, whose award-winning career at CBS News came to an end over her too eager pursuit of the Benghazi story, has proposed a test whereby readers are invited to imagine how different the media coverage would have been had it involved a Republican rather than a Democrat. Can one imagine a Republican candidate getting away with not releasing his college and law school records – records that likely show he applied as a foreign student – as candidate Barack Obama did in 2008 (and since)? Or the media proving so incurious about what a Republican candidate might have been listening to for 20 years in the pews of his fire-breathing pastor, or why the records of a foundation on whose board he sat and which was headed by a former violent radical were sealed to researchers prior to the 2008 election?
Imagine that a former Republican secretary of state had deliberately violated her department's own rules over email use, by creating a private (and easily hacked) server, so as to maintain complete control over the record of her term in office. Would a Republican candidate still be viable who had signed off on granting control of half the world's uranium reserves to Russia, while her husband was receiving half million dollar speaking fees from those with a huge financial stake in the deal?
If there is one institution in American life that has to be above any suspicion of partisanship, it is the Internal Revenue Service. Thus evidence that the IRS treated the applications for tax exempt status from conservative and pro-Israel organizations differently, and that the official in charge, Lois Lerner, deliberately destroyed her hard-drive as part of a cover-up, as did numerous colleagues whose emails were subpoenaed, should have been the big scandal of President Obama's first term in office. But it has gotten scant mainstream media attention.
The week before Supreme Court's decision saving Obamacare from legal challenge for the second time, the Wall Street Journal had a long article on 20,000 pages of emails between MIT economist Jonathan Gruber and the White House during the drafting of Obamacare. It was Gruber, readers will recall, who was taped at a healthcare conference explaining how the very provision Chief Justice Roberts found to be ambiguous in King v. Burwell – and thus a fit subject for his redrafting -- had been carefully written to force states to set up their own healthcare exchanges.
The release of the Gruber emails should have been a huge story for two reasons. First, it established that Gruber was a major figure in the drafting of Obamacare and that his testimony on the laws provisions is highly creditable. And second, that the administration lied through its teeth, when it portrayed him as a bit player who had little input into the law. Yet with the exception of the WSJ, the story of the emails received almost no mention in the mainstream media, and none at all in the news pages of the NYT and Washington Post.
ONCE FORMER COURT PRESIDENT AHARON BARAK was the world standard bearer for the usurpation of legislative authority by the judiciary. Professor Ruth Gavison pointed out that no high court in the world played the same oversized role in establishing societal norms in every possible area that the Israeli Supreme Court does, even in the absence of a written constitution. During his reign, Barak was never troubled by the question of who should establish legal norms in a democracy. He and his colleagues on the Court gladly undertook the role, in the words of his predecessor as Court President Moshe Landau, of Platonic Guardians self-empowered by virtue of their superior wisdom to make decisions in every area – even the deployment of troops in wartime, according to Barak – for which they had no training. Nor when making those decisions did Barak even feel the need to consider the views of the majority of the citizenry. Enough, Barak wrote, to reflect the opinions of the "enlightened" members of his society, which mirable dictu, inevitably turned out to be his own opinions as well.
But Barak now has a competitor: Justice Anthony Kennedy of the United States Supreme Court, who felt competent to reverse the collective wisdom of every major religion and every known polity until fifteen years ago and declare same-gender marriage to be constitutionally required. Rather than let the legislative process play itself out in the fifty states, Kennedy and the bloc of four liberal justices who joined him and whose votes were never in doubt because liberals can always be counted on to reliably vote their political views decided to short-stop the process.
The consequences of constitutionalizing same-gender marriage will be enormous and potentially devastating for religious Americans of all faiths, despite some feeble attempts by Kennedy to reassure them that their free speech would be protected. School curricula will be altered to promote the new right. Opponents will come to be viewed as bigots comparable to the axe-wielding Lester Maddox.
At oral argument, Solicitor-General Donald Verrilli Jr., was asked whether religious schools and institutions faced the threat of the loss of tax-exempt status if the Court found in favor of a constitutional right. He admitted that there was a distinct possibility. And he was right.
Last week's decision was this generation's Roe v. Wade, the imposition of a nationwide social transformation by judicial fiat. Already in my long ago days in law school, the dirty secret of Roe vs. Wade was that it was incomprehensible on legal grounds. Already then there existed a cottage industry of law professors busy writing alternative opinions to that which Justice Harry Blackmun had actually written.
Kennedy, like Blackmun before him, made no real attempt to justify his decision on constitutional grounds. After all, it can not be seriously argued on equal protection grounds that there is no relevant distinction between traditional marriage and that to which the U.S. Supreme Court granted constitutional protection, chief among them the procreative capacity of the former.
One can imagine Justice Kennedy penning his embarrassing, sophomoric fatuities about the mysteries of existence picturing himself as the voice of profundity. But as Chief Justice Roberts put it in his sharply worded dissent, the one thing that could be said confidently of the decision was that it "had nothing to do with the Constitution."
On such occasions, however, the last and truest word belongs to Justice Antonin Scalia. He focused, as conservatives frequently do and progressives never, on the hubris of nine justices making a decision that is properly left to the legislatures of every state. "The five justices who compose today's majority are entirely comfortable concluding that every state violated the Constitution for all 135 years between the Fourteenth Amendment's ratification and Massachusetts permitting of same-gender marriages in 2003. . . . [T]hey know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry."
In response to the judicial usurpation, Scalia wrote, "A system of government that makes the People subservient to a committee of nine unelected lawyers does not deserve to be called a democracy."
