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?
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.”
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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Tuesday, December 13, 2022
Elder of Ziyon
