The pundits got one thing right about Israel’s judicial reform proposals—final votes in the Knesset on its core elements would not be taken during the winter legislative session. But they got almost everything else wrong. For that reason, it may be a useful exercise to annotate some of the most egregious errors that have appeared in print if only to explain why the government’s legislative blitz was paused.
One common narrative focuses on the outcome of Israel’s recent election which gave Benjamin Netanyahu his sixth term as prime minister backed by 64 of the 120 Members of the Knesset. But government policies are not entirely or even mostly determined by suffrage alone. Because no political party has ever won a majority of parliamentary seats, the person designated by the president to form the government must cobble together a coalition comprised of political parties — several of which may be promoting radically different agendas — and bind them to negotiated agreements that are not necessarily consistent with or reflective of promises made during the election campaign.
Ignoring the second stage of Israeli elections has given Netanyahu’s admirers their narrative: the protests come from progressives seeking to undermine the prime minister and to defy the will of the people; in effect, a testament to the difficulty of true but needed, transformative institutional reform. But it is reasonable to ask if Israelis voting for Likud with Benjamin Netanyahu at the head of the party list, were knowingly casting their support for a radical transformation of the judiciary?
The rhetorical warfare over the government’s legislative agenda reveals the poverty of not only the vocabulary deployed to describe these developments but also the disposition to squeeze the conflict into partisan binaries that really do not fit the facts but do send a signal of love or hatred for Prime Minister Netanyahu. A simple look at the growing numbers of people taking to the streets these past three months makes the interpretation of protests being driven by the progressive left hard to accept. Many of the former heads of the police or various security services pumping energy into the demonstrations were appointed to their offices by Prime Minister Netanyahu — hardly a mark of identifying with progressives.
It is probably no surprise, then, that both sides immediately reached for the same word — democracy — to summarize their aims and their fears. What followed the running critique of protests as undermining democracy and the will of the people were counter charges of a populist takeover of institutions that protect rights and restrain the wielding by the government of untrammeled power. Although both sides insist Israeli democracy is under assault, none of their lamentations makes entirely clear what is meant by democracy. It is fair to note that this conflict comes at a time of as much confusion over democracy’s meaning as fear for its prospects. The possibility of a drift toward a soft despotism haunts democracies across the globe today.
But is this the possibility shadowing Israel’s turbulence? Both advocates for judicial overhaul and those opposed hold their views tightly regarding the alternatives as either mistaken or disastrous. There is almost no zone of legitimate argument or a terrain of public debate that receives mutual respect and deference. This turmoil may, in fact, be more a consequence of the specific way in which this government has pursued its judicial reform agenda rather than simply a reflexive opposition to the idea of judicial reform. For the judicial appointments committee had already been restructured to prevent domination by either judges or coalition parties by none other than former justice minister Gideon Saar, at the time a member of Likud, but who now appears at protest rallies. Still another former justice minister, Ayelet Shaked, also helped diversify the courts, many of whose judges are already issuing rulings that roll back what was criticized as judicial overreach. Both reforms occurred without even hinting that something was badly out of joint.
Consider what might have transpired if the program of change had been coordinated with representatives of the opposition before announcing deadlines for swift committee deliberations and rapid-fire Knesset final votes. Such an approach would have encountered some opposition, and while the limits would have disappointed those who are pushing for a thoroughgoing overhaul, it would have been achievable and more than likely able to head off widespread rage and the sense of crisis.
Compounding the unrest is the fact that only a skeleton of the judicial package has worked its way into public discourse, expanding what was already a ripe market for rhetorical excess. Even though what is now known may turn out to be something quite different from what was intended to be finally produced, when proponents of the overhaul pronounced themselves not only satisfied with these rickety bones but positively giddy about them, alarm bells were rung wondering where this so-called judicial reform was taking the country.
Israelis — including those opposing the coalition’s judicial legislation — are not opposed to rebalancing institutions and defining the scope of authority accorded the Supreme Court. Most Israelis are looking for a pragmatic way forward that may introduce changes but which will protect rights. In well-run democracies, a phrase used frequently by Prime Minister Netanyahu in defending one or another government measure, people who are defeated in an election are not divested of their rights. Rebalancing Israel’s governing institutions cannot be achieved by focusing only on the judiciary, to be sure a core element of state authority, but not the only one that would be affected by changes in the scope of its powers. With elections to a single legislative body not based on individual constituencies, to accord the coalition dominance over judicial appointments may weaken the Knesset as much as the judiciary particularly if a government is determined to steamroll its agenda, a valid concern given how this coalition has operated in the 100 days it has been in power.
The transformation of the judiciary has brought together parties representing ultra-Orthodox clerics and religious zealots who favor expanding Jewish settlements across the West Bank. They have been appointed to critical financial and security ministries. Their appointments have confused lines of military and police authority generating internal arguments in forces that are already stretched in trying to contend with multiple complicated security challenges. The radicals [a term used by Shas leader Aryeh Deri] in the coalition have convinced the prime minister to back policies that he has never before supported — such as the death penalty for terrorists — that are not likely to deter violence but which may damage Israel’s reputation and international standing. A prime minister known for his savvy political sense has opened controversies on the widest possible issues. Whatever maladies Israel faces, they have more in common with governmental dysfunction and incompetence than with despotism. What is happening in Israel is not the breakdown of its society — things have not fallen apart to invoke the powerful phrase given momentum by Chinua Achebe. What is unfolding is a reassertion of the ideals proclaimed in Israel’s Declaration of Independence for a Jewish state guaranteeing freedoms for all its citizens.
From time to time, in these past months of protests and turmoil in Israel, something emerges to convince pundits that the controversy over judicial reform is essentially a ‘culture war’ between secular and religious communities. While the line between the two seems clear to Religious Zionist MK Simcha Rothman who is pushing the judicial reforms in the Knesset, it is not as bright as it once was for most Israelis. One example strikingly illustrates the changes. The most popular singer-composer in Israel today is Ishay Ribo, whose songs are loved and sung by both secular and religious Israel. His songs focus on ritual and belief giving the language of canonical Jewish religious texts a distinct contemporary resonance.
Still, the religious secular split should be given its due. A moral panic has overtaken some part of the religious community that voted for a unified Religious Zionist, Jewish Power, and Noam parties, dominated by politicians once deemed belonging to such an extreme fringe that middle class religious Zionists would never have voted them into office. Anxieties for these people were triggered by the revolution in words and deeds coming from America and sweeping across the globe, colonizing sectors of Israeli society. Voting for one or another of the Religious Zionist parties was a backlash against a cultural transformation feared corrosive of religious values and lifestyles. Empowering the government by filling ministries with politicians who express rage and opposition to these current trends was expected to reboot the country’s public values. But in the age of social media and the internet, no matter what government ministers say or do, they cannot wall off the spread of ideas. More to the point, such fear is unwarranted. Israel’s social justice warriors, whatever their sexual identities, show no signs of alienation: they serve in the army, establish stable relationships, and go to a lot of trouble to have kids. Gay pride parades are holidays for their children.
That the Israel of today is more socially liberal on almost every issue than the Israel founded 75 years ago is clear: more secular, more heteronormative, more diverse in terms of both race and personal identity. But in Israel these trends have not weakened the grounds for finding meaning in the Jewish state. That is why what was announced as a rebalancing of institutions quickly turned into a clarion call for reasserting the purpose of a Jewish state and securing its core values. Opponents look to protests and even to disruptions as the only way to stave off policies that would effectively thrust them into EXILE. And ending exile was once an issue that mattered to Zionism.