How Court Reform Will Strengthen Israeli Democracy
Opponents turn every accepted concept of democratic and liberal government on its head in order to claim that Israel must retain the Barak-era judicial aristocracy. They argue, for instance, that there can be no liberty if any organ of the state has unlimited power, and, therefore, the Israeli judiciary must continue to enjoy unlimited power. Likewise, they argue that Israel needs checks and balances among its institutions, and therefore the Knesset must be deprived of all power to check the courts.Gil Troy: Was the massive Israeli protest historic? The people decide - opinion
But to a much greater degree than arguments of substance, the opposition to judicial reform must be seen as an artifact of Israeli democracy. The opposition opposes judicial reform because it is a centerpiece policy of the current government, no matter what its content. Israeli politics have always been hyperbolic, and the opponents’ rhetoric upholds this dubious tradition. Thus, opponents describe judicial reform not simply as a policy to be opposed, but rather as the transformation of Israel into a fascist dictatorship, a theocratic autocracy, and an exit from the family of democratic states. To a large degree, the debate has been ad hominem, with opponents rejecting reform on the grounds that reform politicians’ motives are largely political, although, naturally, opponent politicians’ motives are also largely political. None of these arguments affects the merits of the proposal.
There is an irony to the opposition to judicial reform – its existence and character demonstrate in practice exactly why the opponents’ claims of incipient dictatorship are nonsensical. Even in the era before Barak’s “constitutional revolution,” constitutional scholars agreed that Israeli governments and parliaments are exceptionally weak when compared to other democracies. All governments in Israel are unstable and subject to be undone in minutes by political bargains. The political logic of the opposition is to create chaos to destabilize the government and bring about new elections. It is, the opposition believes, exactly how the 1999 opposition toppled Prime Minister Netanyahu’s then-government, and, in their opinion, how the 2022 opposition toppled then-Prime Minister Naftali Bennet’s government.
Chaos works as an opposition strategy precisely because the opposition’s claims of unlimited government power (absent the court) is a lie. Governments in Israel last only as long as they enjoy the confidence of parliament, and governments have never lasted to term, even in the pre-Barak era. There have been 37 governments for 25 parliaments, meaning one half of all governments fail to last even the term of the Knesset. Knessets typically fall to early elections, and no party has ever won a majority of seats in the Knesset. The idea that judicial reform could lead to all-powerful Israeli governments is risible.
One of the central reasons for Israel’s electoral instability is proportional representation. Israeli elections are not conducted by district, but at-large, with even small minority parties winning representation in the Knesset. John Stuart Mill identified proportional representation as a democratic technique for protecting minorities centuries ago, and constitutional scholars of Israel have often complained that minority interests are too powerful (for instance, that ultra-Orthodox Jews are able to win draft exemptions and generous welfare payments by trading their minority votes). When opponents claim that Israeli minorities will be left unprotected if judicial aristocracy is curbed, they are arguing that Israelis should reject the wisdom of their experience in favor of a hollow cliche.
The battle for judicial reform will continue in Israel with the characteristic amounts of noise, demagoguery and anger, but in the end, the democratic process will win out. And lovers of liberal democracies should be all the happier if judicial reform prevails.
TOO MANY Israelis, including our prime minister, have sacrificed too much personally to sabotage this state so easily. Admittedly, that reassures us while feeding the mystery of why this bug-riddled version of Bibi 3.0 in his third go-round as premier has behaved so self-destructively.New Israel Fund reveals donations to anti-reform protest groups
Apparently, Netanyahu will not fire Gallant if he apologizes. Gallant should apologize for dithering so long before standing up. Gallant could also apologize for his cowardly Likudnik colleagues, still quaking before this half-Bibi, this ever-shriveling Netanyahu.
Israel’s ethos of self-sacrifice explains our patriotic protesters’ addiction to Israeli flags. The many values, aspirations, stories and enemies uniting us explain why it is reprehensible to dismiss the protesters as anarchists and the government’s supporters as fascists.
That Israeli interconnectedness is why Israeli neighbors are so intrusive, why many of us, led by President Isaac Herzog, speak respectfully about both sides, why we still rock on the happiness index and yes, why our politics so often spirals wildly but stops short of self-destruction.
Beyond Monday’s mutual de-escalation, note Bnei Brak’s CDF – Cholent Defense Force. Two weeks ago, protesters swarmed that ultra-Orthodox neighborhood. They were greeted with dollops of cholent and rousing Jewish songs. This power move – saying you don’t rattle us – was also a patriotic gesture, citizen to citizen, crossing one of Israel’s widest divides. “When dialog doesn’t take place, insults do,” a haredi Likudnik City Councilor, Yaakov Vider, explained.
Similarly, Adina Bar-Shalom recalls how her late father, Rav Ovadia Yosef, liked living in secular neighborhoods. Once, Tel Aviv’s mayor offered to block his street on Shabbat to silence the traffic noise. “What noise,” Ovadia asked, modeling the discipline and love our patchwork-quilt society requires, with so many who use our shared gift of freedom choosing to live differently than we do.
The future remains in our hands. The silent majority must act uncharacteristically by raising their voices for compromise. There’s not much public pressure pushing the polls to compromise or boost our president’s mediation efforts. Why Not? Where’s our Million Moderates’ March?
It will be easiest if our politicians ease the process by making some judicial reforms so the government can declare victory but shelving the most radical proposals, especially the override clause, so the protesters can declare victory, too.
The divisions run deep. We all must lower the tension, control the hysteria and respect our political rivals. Rather than yelling at one another, let’s talk to one another and even better, listen to one another.
As always, in healthy democracies, we the people can be the history-makers; we can be the change. We will determine whether last week really was historic, defusing the tensions or just another chapter in this saga that must end yesterday.
The U.S.-based New Israel Fund, which provides financial support to progressive and anti-Israel groups, on Monday posted to its Hebrew website a list of its donations to groups involved in the protests against judicial reform.
Demonstrations, sometimes turning violent, have roiled Israel for the past three months and, at least temporarily, derailed the government’s legislative plans.
The total amount spent, spread across 26 groups, comes to about 2 million shekels, or $660,000. Indeed, NIF money helped to ignite the protests, funding the first major demonstration on Jan. 7 in Tel Aviv.
“They’re not exaggerating their role,” Gadi Taub, a senior lecturer at the Federmann School of Public Policy at Hebrew University, told JNS. “They’re taking pride because they think they might have succeeded in stopping the reform. And they might have.”
Taub added, however, that the protesters (whose numbers he said the left has in any case exaggerated) were only indirectly responsible for the government’s decision to impose its legislative freeze. The direct cause was “a near mutiny in the army.”
“When you have the Supreme Court president, Esther Hayut, maneuvering for a constitutional crisis, and then the chief of staff of the army saying that a constitutional crisis is a red line for the army, what you have is a threat of a coup. This is what forced the government to bend,” Taub said, acknowledging at the same time that the protests did play an important role by “emboldening” anti-reformists, including army reservists who refused to report to duty.