Are The Floodgates Of Attacks Against Israel About To Open Even Further? (Daled Amos)

By Daled Amos

There was a time when Jews just did not criticize Israel in public.
Now we have reached the point where people who define themselves as Jews condemn Israel publicly.

But just this month, a respected Jewish leader has come out publicly saying that he may not be able to back Israel.

In an interview last week with the Jerusalem Post, the former head of the ADL, Abe Foxman, said:

If Israel ceases to be an open democracy, I won’t be able to support it. 

I never thought that I would reach that point where I would say that my support of Israel is conditional. I’ve always said that [my support of Israel] is unconditional, but it’s conditional. I don’t think that it’s a horrific condition to say: ‘I love Israel and I want to love Israel as a Jewish and democratic state that respects pluralism.’ [emphasis added]

I want Israel to be Jewish, absolutely. But I want it to be a democracy.

Not support Israel?
Support Israel...conditionally?
Israel has to be pluralistic as well as democratic to earn support?

Abe Foxman (YouTube Screencap) 

This latest development is a result of the latest Israeli election that resulted in the inclusion of Itamar Ben-Gvir and Bezalel Smotrich in Netanyahu's coalition, along with their right-wing views on the Law of Return, the Israeli Supreme Court and the status of LGBT. 

Foxman believes he is not only speaking for himself -- he says that it would be difficult for most Jews outside of Israel to support the Jewish state if such laws were changed.

But the new government has not even stepped in yet. 

Foxman is basing himself on things that have been said by Ben-Gvir and Smotrich, without waiting to see how much of what was said was just politics. Fleur Hassan-Nahoum, deputy mayor of Jerusalem, argues that Israelis voted for Ben-Gvir because of what he said about security, not because of his extremist views. He has claimed, “I have matured, I have moderated." There is no choice now but to wait and see. 

Unless you are the media, which will do what it does best -- offer wild speculation.
There is no need for Jewish leaders to do the same. Instead, Foxman should follow his own advice.

He recalls how Jews in the US reacted to the election of Menachem Begin in 1977:

It was a shock to the American Jewish system because they didn’t know him. It was a very scary time. I personally knew Begin and I knew what he believed in. It wasn’t a shock to me, but to the American Jewish community it was horrifying.

But Foxman was not the one who turned things around. It was the Reform leader, Rabbi Alexander Schindler:

Schindler wasn’t a supporter of the history or the philosophy of Begin and of Revisionist Zionism,” Foxman said, adding that in just two weeks, Schindler “turned the American Jewish community around, basically saying that, as long as Israel is a democracy and as long as Begin was elected by the Israeli public, we will find a way to work with them."

e Why can't Foxman follow Schindler's example and go and meet with Ben-Gvir and Smotrich before talking publicly about not supporting Israel? 

The article quotes from The Encyclopedia Judaica, that Schindler

publicly embraced Begin, a man with whose views he disagreed as the elected prime minister of Israel’s democracy, and demanded that the Jewish establishment give Begin a fair chance and not delegitimize him at the outset. [emphasis added]

When the parallel between 1977 and now was pointed out to Foxman, he replied, “there’s a lot more anxiety today than there was then.” Not only does Foxman deny the comparison with Begin in general, he also will not make any attempt to follow in Schindler's footsteps to attempt to make dialogue:

I don’t think they [the heads of the right-wing Israeli parties] care about us. I don’t think they really care what I think, or American Jewry thinks. I think it’s a different mentality. I hope I’m wrong, but I don’t think so.

I don’t think they appreciate [us], so I don’t think this is a time for dialogue.

Yet at the same time, Foxman says in his Jerusalem Post interview that he personally has told critics in the US Jewish community that they should "relax," because Netanyahu wants to leave a legacy and that will temper what he does. The way Foxman puts it is that Netanyahu "[can't] afford to put into his government people who will blackmail him every day." Yet Ben-Gvir and Smotrich both have ended up with significant positions in the new government.

In the final analysis, Foxman's doomsday prediction that a right-wing win signals the end of democracy in Israel seems familiar. Elliott Abrams points out a comparison:

There is a striking parallel between the comments being heard from the left in the United States about the meaning of a possible Republican victory November 8th, and from the left in the United States—as much as or more than in Israel—about the meaning of the victory of the right in the Israeli election on November 1st. The meaning, we are told, is the end of democracy. 

One element of what Foxman sees as an attack on democracy in Israel is the intent of the right wing to make changes to what he refers to as "Israel’s world-class judiciary system." The problem is conflating the idea of democracy with the concept of liberalism. The two are not synonymous, and when it comes to the Israeli supreme court, the two may even be in conflict.

An article in the National Review points out that Judicial Reform in Israel Is Urgent and Necessary And the reason why reform is needed is that the Israeli Supreme Court is not quite as "world-class" as Foxman makes it out to be:

The Israeli Supreme Court, not a popular-representative body, unilaterally declared a written constitution in the 1990s, a surprise to the lawmakers who had passed the statutes the Court decided to ‘constitutionalize.’ The Court then endowed itself with the power of judicial review of parliamentary legislation despite the absence of a duly ratified constitutional document. And the Court departed from its own tradition of restraint to effectively eliminate any limitation on standing and subject-matter jurisdiction in constitutional cases.

At issue is the Supreme Court's appropriation of policy-making power -- not exactly the hallmark of democracy, no matter how liberal the decisions of the court may be. The article could just as well be talking about Foxman when it notes that "some foreign-press coverage of these issues, however, has conflated the substance of the proposed reforms with a partisan distaste for their current advocates."

Another problem with the Israeli Supreme Court is that has the ability to "pack" itself. 

New judges are appointed by a committee consisting of 9 members. Three of those members are justices who are already members of the Supreme Court. Since a candidate to the court requires a minimum of 6 votes, those 3 members can single-handedly veto any candidate they don't like, for instance, because the candidate does not share the judicial philosophy of the current judges.

What wouldn't those US Democrats who want to pack the US Supreme Court do to have a system like that?

The article echoes Abrams in calling for the need to keep partisan politics out of the need for fixing the problems in the Israeli Supreme Court:

It would be a mistake to confuse current politics, warts and all, with the urgent and justified call for far-ranging judicial reform in Israel — and its importance to the flourishing of the world’s only Jewish democratic state.

And what about the issue of the "override clause," an amendment that the incoming Netanyahu government has promised to make, allowing the Knesset to override the Israeli Supreme Court's reversals of the laws passed by the legislature. These judicial reversals, unlike in the US for example, are not based on a written constitution, since Israel has none. The basis for such a decision is purely their own opinion with no objective, judicial guidelines.

But going a step further, Haim Ramon, the former minister of justice, recently pointed out that people seem to have forgotten the history of this "override clause" which is supposedly such a threat to democracy and the very foundation of justice in Israel:

I’d like to take the opportunity to remind all those who tend to ignore the history of the override clause that its … father was none other than Aharon Barak [a former president of the Israeli Supreme Court]...

I also intend to reiterate that the best of nine judges led by Barak ruled that the override clause was completely constitutional—with a 61-Knesset seat majority [which is what is being suggested now]. Barak even stated clearly that "the goal of the override clause is to enable the legislature to achieve its political and social objectives without fearing—when its constitutionality is subject to judicial review—that it will be deemed unconstitutional and therefore nullified.” [translated by Ruthie Bloom; emphasis added]

So much for that threat to democracy.

Alan Dershowitz sides with Foxman about the "override clause" and believes that “the Israeli Supreme Court has been the gem, the jewel, of judiciaries around the world." But Dershowitz offers another reason for keeping things the way they are. He believes that the Israeli Supreme Court

has been the main argument that Israel has been able to make to keep issues away from the International Criminal Court and other international courts … [It] is essential not only to the preservation of Israeli democracy, but to Israel’s attempt to present itself in an honest, truthful and positive way to the world. [emphasis added]

Dershowitz concludes, “It is not broken. Do not fix it.”

Alan Dershowitz (YouTube Screencap)

That last point, as we have seen, is debatable. But since Dershowitz does not address the claims of judicial overreach, excessive power in the selection of judges and the support by Barak for the "override clause," we can only wonder if Dershowitz is right about the continued strength of the Israeli Supreme Court's reputation in repulsing the intervention of international courts in Israeli affairs.

As for Foxman's public criticism of Israel, we wait to see what Netanyahu's latest coalition will do. At the same time, who knows what kind of unhinged attacks await Israel in public and on social media.

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