Judicial reform in Israel: the left mounts a coup d’état
Anyone following the question of judicial reform in Israel closely would know that the process is long overdue. The Israeli Supreme Court is no bulwark against democracy. It has arrogated to itself the right to strike down laws passed in the Knesset. It grants standing to anyone who wishes to bring a suit before it without that claimant needing to be a party to the suit. It self-selects its own members. It judges matters on the grounds of reasonability as determined by the justices, not on the grounds of whether the claims are legal or not. Add to this that the Attorney-General is not part of the government and that the legal advisers to ministers are beholden to the Attorney-General and not to the minister they advise. The upshot is the government is hamstrung by the courts, which has arrogated to itself the power to prevent the government from exercising its duly sworn duty to legislate and govern via bills passed in the Knesset, Israel’s parliament. This untenable position means that even regarding questions of national security and defense the courts may interfere and overrule government policy. May interfere and has interfered, which explains in part why governments dominated by the Likud have not pursued policies to deal effectively with the criminal Palestinian population steeped in Jew hatred which extends to the Jewish state. I say in part, because there is also the extreme proportional representation governing Israel’s electoral system, which ensures that Likud dominated governments have always been coalition governments, often involving partners with opposing viewpoints on this question.
Despite this, Israel now has a stable coalition that sees eye to eye on the need for judicial reform and has committed itself to strengthening Jewish presence in Judea and Samaria, another long-standing failure of previous governments. In a parliamentary democracy like Israel, the opposition usually confronts the government about bills it does not like in the various readings a bill must undergo in committee. The debate engendered there may spill over into the wider public realm. If the opposition’s case has merit which the government ignores, the ruling party risks losing the next election. That’s how things work in a democracy because a democracy’s chief feature is that power is divided at the top, between the governing party and the opposition which threatens to replace it at legally sanctioned intervals. Only a bill which puts an end to the opposition and elections can be characterized as a threat to democracy. A bill to check the power of the judiciary that must undergo three readings in parliamentary committee is not. And yet the opposition to this bill in Israel has labeled it precisely that and even more; some have even called it the end of democracy. Those who have done so can be found not only among the opposition parties, but also in the legal profession, in the courts, in the media, in the army, in the police, in the streets, and in Jewish communities throughout the Diaspora, where their denunciations have been echoed by the anti-Israel establishments of Israel’s so-called friends.
Why did the Opposition parties in the Knesset not participate in the committees to voice their criticisms of the proposed legislation? Why did they right away go public, call for mass demonstrations under the banner Israeli democracy is in danger, and refuse to negotiate any compromise unless the government withdrew its bill? Are they completely stupid? Do they really believe that judicial reform threatens parliamentary democracy and the rule of law? Do they not understand what democracy is all about? Or do they, like left-wing critics everywhere in the western world, think democracy is coterminous with their political agenda and any threat to its realization is the equivalent of dictatorship and fascism? Have they learned nothing from the Soviet experiment with socialist utopia? Or maybe they have, especially the part where the commissars not only get to run the show but enjoy the perks of their experiment in virtue at the people’s expense.
The Israeli left has governed the country for most of its existence. The socialist parties formed the government until 1977, making deals with the religious parties granting them concessions in exchange for getting a free hand in finance and foreign affairs. The left also controlled much of the economy through the Histadrut, the general labor union which was also a major employer. It also owned publishing houses and newspapers, such that even when the Likud came to power under Begin and formed a government in 1977, the sons and daughters of the left retained control of most of the commanding heights of the economy and civil society. With the liberalization introduced by successive governments under Netanyahu, the grandsons and granddaughters of Israel’s founders continued to flourish, moving into the post-modern post-Zionist zeitgeist with nary a blip, playing catch-up with their homologues in Berlin, Paris, London, New York, and L.A. Whenever they won an election they negotiated with the Palestinians, betraying their own laws and their own people, notably with the Oslo Accords in 1993 and with the Disengagement from Gaza in 2005. Both measures proved to be disastrous for Israel. The country reaped terrorism at home and denunciation abroad, but the left never apologized. They never apologized for the political chicanery they engaged in to bring these policies to fruition. They never admitted they lied about the consequences they had promised should their policies prove wrong. And they never acknowledged that their policies endangered the country and continue to endanger its citizens. Instead, they constantly attacked Netanyahu and the Likud dominated governments he formed, attacked him for being corrupt, racist, fascist, and indulging allies whom they could only describe as misogynist, homophobic, theocratic, and extremist. Indeed, before the current coalition government, having won the election, was even formed the left began its campaign of denunciation, warning the very existence of this government would be a threat to democracy. Judicial reform was only the occasion to topple it through an extra-parliamentary campaign undertaken to save democracy from the people and for the people.
How easy it was for them to do this. After all, they staff the media, the country’s cultural institutions, the academy, the high- tech economy. For a long time, they ran the army and still constitute its reserve officer corps. They dominate the legal profession. What to them a government they could dismiss by slander, mobilizing mass demonstrations of their supporters whose heads they had filled with garbage for years and years and financed by funds funnelled to them from NGOs abroad, not to mention the US State Department? In their zeal they went so far as to have army reservists announce they would not serve if the judicial reform went through, got former army commanders and police chiefs to weigh in as well, mobilized the Chief Justice of the Supreme Court and the sitting Attorney-General to intervene on the question, pressured the President of the country, scion of a founding Zionist family, to call for a halt. Leading liberal pundits on the Israeli scene wrote their American counterparts to help them save Israeli democracy. Thomas Friedman chimed in from the New York Times with a piece of advice from President Biden, who once lectured Begin on how to defend Israel. Matti Friedman wrote in The Free Press denouncing Netanyahu and his government as an enemy of the people, calling Public Security Minister Ben-Gvir a hooligan and the Minister of Finance Smotrich a fundamentalist hard-liner. He had not a word to say about the judicial reforms themselves but was free and easy with unfounded accusations of the evil that awaits the country should they pass, including a scenario where elections would be suspended.
American Jews lapped it up. When Smotrich visited the United States major Jewish organizations boycotted him. France’s Keren Kayemet L’Yisrael followed suit. Airline pilots refused to fly Prime Minister Netanyahu to Rome. And in the midst of all this, occupied Palestinians continued to attack and murder Jews. One notable incident occurred in the village of Huwara where Israeli cars pass every day under a hail of stones, bricks, and bullets, which recently led to the deaths of two young Jewish boys. Since the army had done nothing to prevent Jews from running this gauntlet day after day, the Jewish residents of the neighboring settlement of Har Bracha gave the Palestinian residents of Huwara a taste of their own medicine, burning cars and buildings. Since then, the stones and cinder blocks have stopped, but the entire Israeli elite came down on the Jews like a ton of bricks, accusing them of carrying out a pogrom, arresting some youths who were released by a Jerusalem court only to be placed under administrative detention by the Shin Bet, the Israeli security agency. The Chief of the Israeli Defense Forces also warned Israelis about taking the law into their own hands, but he was busy foiling another terrorist attack from the Palestinian Authority, about which he said this: “These complex operations send a clear message to the terrorists, that we will find every terrorist, wherever they are.” The message was so clear that soon after he had uttered these words another Palestinian shot three Jews in the heart of Tel Aviv. The only people to defend the Jews who chose to defend themselves were Knesset members from parties Matti Friedman and his leftist friends call extremists. But that’s the point, is it not? To make it impossible for any government to think outside the box when it comes to defending Jewish lives, because only the left knows what is good for the country. And what is good is indulging the Palestinians and the anti-Semites in the West who protest they are Israel’s friends, willing to go the extra mile to save Israel from itself. Indeed, the left has so orchestrated this coup d’état they have succeeded in forcing a run on the Israeli shekel, getting foreign economists to warn, with no basis in fact, of the economic peril judicial reform would entail. They even sent Tzipi Livini, former Foreign Minister under Ariel Sharon, and Ehud Barak, former Labor Prime Minister, to appear on CNN to denounce the judicial reform as an existential threat to the Jewish state.
Once again Jews worship a golden calf. No matter how many second chances the Good Lord offers them, they never fail to renege on the covenant as soon as the sweets of the conquered land beckon. So it was with the Israelites when they left Egypt, turning their backs on Moses at the slightest sign of hardship, and so it was when they regained the land when he was no longer there to remind them of the deal onto which they had signed. Fast forward two thousand years. Herzl had called the Jews to return to their homeland and announced to the world they would do so with public approval of the leading powers of the day. The Zionist movement was founded and this time, Herzl promised, “we will not leave the fleshpots of Egypt behind.” In that, at least, he was right, but the fleshpots of Egypt, now called America, the world’s foremost democracy, are corroding the country. The Israeli elite has latched on to the same insane ideology espoused by its left-wing counterparts in America, where democracy is decreed to be equivalent to Critical Race Theory; Diversity, Equity and Inclusion Policy; Climate Change Combat; and intersectional sympathy that can never be paraded enough for every victimized group, real and imaginary, on the face of the planet except Jews. It matters not that this ideology has nothing to do with facts on the ground. It matters not that it is nothing but virtue signalling for sins of the past and imagined worries for the future. It matters not that the solutions proposed are completely ineffectual. Take the idea of equality for example. In a modern society, there is almost as much inequality between siblings as there is between individuals in the population at large. If families cannot guarantee equality of outcome for their children, what makes anyone think governments can do better? And what about happiness? Or sexual fulfillment? Can we guarantee equality there too? But while we dither about the wrong issues, we fail to deal with the real ones that confront us. And the real one that confronts Israel is how to deal with the existential threat posed not by Iran but by the crazed Palestinians. For when Jews are shot in the heart of Tel Aviv for going out to dinner, it is time to recognize that past efforts at deterrence have failed. And if this is allowed to go on Zionism itself will have failed utterly.
Democracy is a strange political arrangement. Certainly, it is much better than other forms of exercising power because it allows for freedom to emerge, but freedom is a burden as well as a boon. People become responsible for their destiny in a way they could not in the past. But people are fickle, driven more often than not by their passions, and apt to moments of craziness, especially when whipped up by people who think they know best what is good for all of us. Which makes democracies prone now and then to moments of policy madness when the populace and decision-makers unite to decide to reform human nature for the better. Prohibition was one such moment and today we are living another. Even tyrannies did not try to outlaw drinking. Nor did they finance enemy assassins. It is time for democracies to wake up. As I already wrote, as goes Israel so goes the West.
This essay ended here, but before I could publish it I received news of a letter signed by one thousand Israeli writers, artists, professors and academics accusing Prime Minister Netanyahu of conspiring against the State of Israel and all its citizens in order to escape judgment on corruption charges. This, they say, he did “together with anti-Zionist, fundamentalist and Christian elements who promote racist, homophobic and anti-democratic agendas, and with convicted Jewish terrorists.” The letter went on to assert that the judicial reforms proposed by the government will violate artistic and literary expression in Israel and lead to its elimination. Furthermore, the signatories called on Germany and Britain, two countries which they claimed have always supported Israel and its position as a democratic home for Jews, to cancel all visits from Mr. Netanyahu “in view of Benjamin Netanyahu’s dangerous and destructive leadership, and in light of the opposition of many Israeli citizens to the legislative moves and dismantling of state institutions in his hands.” This letter was reported in the Jerusalem Post of March 14, 2023 and shared by Israeli author Ilan Sheinfeld, who self-identifies as a write-at-home mom and single gay father of twins, on Twitter.
This open letter is a tissue of lies so flagrant it boggles the mind that any self-respecting professor, writer or artist would sign it. But some of Israel’s leading writers and academics did just that, which shows how great is the failure of the entire Zionist project. The case against Mr. Netanyahu on corruption charges is falling apart, but even if it were not, in a democratic country a man is presumed innocent until proven guilty. Mr. Netanyahu did not conspire with anyone to bring about judicial reform in Israel. He, together with many other people who have been working on this issue for years, now heads a government that brought proposals openly before the Knesset for scrutiny and debate, as happens in any parliamentary system. It has nothing to do with gay rights, or artistic freedom, which Mr. Netanyahu has made amply clear will continue to be protected by his government. Accusing him of aiming to turn Israel from a democracy into a “dictatorial theocracy” is outrageous. Dragging “convicted Jewish terrorists” into the mix is simply one more piece of slander that is all too current in self-proclaimed progressive Jewish circles, whose hatred for the settler movement in Judea and Samaria gets mixed up with their resentment at the haredi religious sector in Israeli society, all of which turns into this terrible explosion of invective against anyone who disagrees with the two-state option that has proved to be as murderous as it is illusory. And so we come to the crux of the opposition to judicial reform. It is a veritable coup d’état against a democratically elected government, designed to thwart and prevent any attempt on the part of this government, or any future one, to deal with the Palestinians in a different manner. Only Jews could self-destruct in such a disgraceful manner, but since that seems to be the name of the game, let us address the issues which swirl around this proposed reform and fuel the opposition to it.
The first issue is the disconnect between the religious and secular sectors of Israeli society. Neither of them are monolithic, except in the minds of the righteous left. There is resentment among the non-Orthodox streams of Judaism against the monopoly that the Orthodox have on religious rulings that affect civil society. Who is a Jew and what Jewish marriage is a kosher one are among the salient questions that irritate. Participation of women in prayer at the Western Wall is another one. But Orthodox does not mean haredi, and the haredi sector itself is divided into Hasidic and Mitnagid realms, each of which is hardly monolithic. Then too the Orthodox stream has both Ashkenazi and Sephardi components, each with its own rabbis and customs. Then there is the political dimension of religious affiliation in Israel. Both Minister Smotrich and Minister Ben-Gvir sport kippot. But Smotrich hails from the National Religious movement and Ben-Gvir from the even more militant Otzma Yehudit party. They join forces in their attachment to Judea and Samaria as the heartland of the Jewish homeland, and in the religious traditionalism which underpins their nationalist convictions; but they are far removed from the haredi world which so irritates the secular part of the Israeli population. The latter resent the fact that far too many haredi do not serve in the army and far too many do not earn a living, while the state pays them welfare to study Torah. The whole mix is complicated, to say the least, but one thing is certain: it is difficult to imagine the emergence of a theocracy with so many cross-cutting divisions within the religious sector itself.
It is also difficult for Israelis to work out what is a Jewish state, when so many competing identities of Judaism confront each other. And yet Israel is the Jewish state, and a democratic one at that. And since it is the Jewish state, and the only one, it has to work out what that means in practice. Is there public transport on shabbat? Are swimming pools open? Stores? Should answers to those questions be decided at the national or local level? On and on the questions arise, as they do within the religious sector. Can Jews go up to the Temple Mount or not? Should the Temple be rebuilt or not? Some say yes, some say no. How do Jews decide? Who decides?
For a long time, as long as the founding socialists ran the country, they were willing to make a political trade-off. Ben-Gurion’s Mapai allowed the Haredim exemption from military service and gave them financial subsidies in exchange for freedom to maneuver as he saw fit in foreign and domestic policy. The National Religious component of the religious sector took a more active involvement in governing the country as a junior party. Pragmatic adjustments continued over the years, but no one ever addressed the cultural issues that had existed in the Zionist movement from its inception. With the victory of the Six Day War and the capture of Judea and Samaria, the simmering tensions came to the fore and assumed national political salience, especially with the expansion of the settlement movement in the Biblical heartland. But instead of confronting the issues they were swept under the rug. Ad hoc adjustments continued apace, and so did the resentments. And here they are again boiling up to the surface, turned into sledgehammers by the left in its fear and loathing of Netanyahu and his government whose coalition runs right across the religious spectrum, though the secular Likud is by far the senior partner.
Eventually the haredi sector will join the rest of Israeli society in two important respects. Its children will serve in the army and its adults will stop depending on state welfare. Had Israel not had the crazy system of proportional representation, this would have happened long ago. For the rest, there is no reason why its members cannot be left alone to work out their own way of being Jewish in the modern world. But on a broader level, encompassing the whole gamut of religious Jews in Israel, the secular component of Israeli society will have to find a way to engage with its religious half. Here we come up against a fault line that was present with Herzl. Herzl was an assimilated Jew. He came to the Jewish question as an assimilated Jew who turned it into a political one. He had hardly had a bar-mitzvah. He had a Christmas tree in his house until the first Zionist Congress. He was astounded when the poverty-stricken religious Jews of Poland and Russia turned down his Uganda plan because their attachment was to Zion and to Zion alone, an attachment murmured in prayer books for thousands of years of which Herzl was ignorant. He did not know of the way religious Judaism, Orthodox religious Judaism, had preserved the Jewish people for two thousand years; nor did he viscerally understand how important this tradition was for his Zionist enterprise. And so the split between political and cultural Zionism grew and festered until it has grown into the great cultural divide in contemporary Israel and world Jewry. It is a divide that needs to be addressed because every Jew still knows at the bottom of his or her heart that without that millennial tradition rooted in the Torah the start-up nation would not exist today. Nothing in contemporary Jewish education in Israel or the Diaspora addresses this issue, but address it it must, or Israel will sink into the Babylon this nasty, despicable letter addressed to two countries that have hardly been unconditional friends of Israel embodies.
And now for the other great issue which fuels the opposition to judicial reform: what to do with the Palestinians? Which is also: what to do with Judea and Samaria? The first thing to understand is that those who consider Judea and Samaria the heartland of the Jewish nation are correct. If Jews are the aboriginal people of the land of Israel – and they are - then their right to Judea and Samaria is undeniable. Compared to that, the Palestinian claim to those territories is as flimsy as it is unfounded. The second thing to understand is that those who feel like this are not only religious Jews. Many secular Jews endorse this position and rightly so. The settlers are not all religious. Moreover, those that are are far from being haredi and far from being bent on installing a theocracy in the Jewish heartland. The third thing to understand is that Palestinian society is so imbued with blood lust for Jews and the Jewish state that no compromise with them is possible. They raise their children to be murderers and they raise them to be murdered. They have to go, and that is the kindest solution that can be offered them. No deterrence, no peace offers, no diplomatic solution, no money will persuade the Palestinians otherwise. If the Israeli state cannot protect Jews from Palestinian homicidal urges – and it clearly cannot – then it should grant the settler movement in Judea and Samaria self-governing autonomy, with the right to organize its own development and its own self-defence; and thus this Jewish province will settle the land and protect the Jews behind the green line, who will then be able to pursue their lives of artistic freedom and high-tech innovations free of worry from terrorist attacks. And since that province will draw its inspiration from the Torah itself, it too will be a democracy, because in the kingdom of God there is no human monarch. Who knows? It may even serve as exemplar for the Jewish and democratic state Israel’s crazy left-wing seems to have so much trouble embracing.