Daniel Livingston

I worked in the Republican Party. Israel’s government is adopting a vision found on its most extreme fringe.

The judicial overhaul is antithetical to constitutionalism, personal liberty, and the values on which Israel was founded
'This new vision...argues that courts and their decisions are a tool for building a particular illiberal, more religious society' (iStock)
'This new vision...argues that courts and their decisions are a tool for building a particular illiberal, more religious society' (iStock)

Throughout my life, I have been asked two questions countless times: These days, my Israeli friends ask me “why did you make Aliyah when you could be living the good life in America?” And growing up in a progressive suburb of Philadelphia (the same one where Benjamin Netanyahu once lived), it was, “why are you a Republican?”

Despite the progressive environment I grew up in, I identified, volunteered, and worked professionally with the Republican Party because it ran our local and state governments responsibly, believed in equality of opportunity, and supported Israel. I worked in the party amid the rise of Trump and got to know all of its constituencies: from pro-business and social conservatives to defense hawks and Trumpers, and everyone in between. It’s because of this familiarity that I know the Israeli government’s proposed judicial overhaul does not — as they stridently claim – simply and harmlessly recalibrate the balance of powers in Israel, bringing it closer to what exists in other democracies. Nor is it about helping advance a traditionally conservative approach to jurisprudence in Israel.

While the overhaul is certainly a fully Israeli-developed and inspired policy, on a tactical level, it mirrors the American left’s recent proposal to “reform” the American Supreme Court because of its dislike of specific decisions. In the bigger picture, it is also in practice an Israeli realization of a specific autocratic and even theocratic legal vision that is most notably found on the most extreme fringe of today’s Republican Party. In this sense, its realization in Israel is no American Dream, but rather, adopting an American nightmare.

This fringe vision has a name: “Common Good Constitutionalism.” The classic conservative approach to jurisprudence is limiting the government’s intervention in the lives of citizens to protect their rights and freedoms as well as reverence for their country’s founding principles as expressed in its founding documents. This new vision instead argues that courts and their decisions are a tool for building a particular illiberal, more religious society regardless of the country’s clearly-expressed original founding principles (in Israel’s case, in our Declaration of Independence). This vision’s supporters define this as the “common good.”

Obviously, the tactics proposed by supporters to advance such a legal vision are different in the two countries because their legal systems are different. In America, a country with a strong constitution that’s hard to change, the tactic to advance any legal philosophy is controlling the judicial system via supportive appointments. In Israel, supporters of this “common good” aim to neuter the judicial branch entirely, removing restraints on a government in which supporters of the underlying illiberal agenda already rule. Given the lack of other checks and balances in the existing Israeli system – we have no constitution or bill of rights, federalism, or true separation between the executive and legislative branches to begin with – such a removal of restraints is precisely what’s achieved by the core components of the government’s proposed overhaul: giving the government complete control over judicial appointments, politicizing the state’s legal apparatus, drastically limiting the court’s basic powers, and making judicial rulings reversible by a simple majority in parliament.

Disingenuous comparisons

It’s this context that renders moot the disingenuous, surface-level comparisons made by the overhaul’s supporters between their plan and systems in other democracies, including in the United States. For example, to claim that “in America, politicians also pick judges” ignores the fact that American judges are still bound by the Constitution and the Bill of Rights (there are no such things in Israel), judicial appointments must be approved by a Senate that often is controlled by the opposing party (the government here would never face any such obstacle), and judicial rulings cannot be overruled by parliament (a power the government is simultaneously planning to grant the parliament it effectively controls). Even the claim that ‘in Canada, parliament can override court decisions’ is rendered moot by the Canadian override clause’s limited scope as opposed to the current Israeli proposal.

Despite the different tactics reflecting the different systems, the desired outcome is the same. Just as in America the leading supporter of the “common good” theory expressly believes in Catholic integralism — the idea of subordinating the American government to Catholic precepts – supporters of judicial reform here are motivated by their underlying desires to implement a different illiberal agenda. It’s important to note that different members of the government have differing illiberal agendas of varying content and severity. Some are personally motivated, such as that of Netanyahu, driven by his desperate drive to escape his ongoing trial. Others are religiously or politically motivated. But the complete set may include everything (all publicly proposed ideas) from limiting academic freedom and criminal punishments for women who dress immodestly at holy sites, to religious coercion such as enabling security guards to search the bags of people visiting their loved ones in the hospital for chametz (bread products) during Passover.

Uniting all of the overhaul’s supporters is the fact that for them, whether or not Israel remains a vibrant democracy is irrelevant. Even if democratic institutions functioned perfectly, if they posed an obstacle to the implementation of their broader agendas, they would target them. That is the predictable nature of an agenda rooted in personal considerations like Netanyahu’s or in religious considerations like Smotrich and the ultra-Orthodox’s wish to ultimately reshape Israel into a halachic state (i.e. one whose supreme law is Jewish religious law). That is also the predictable nature of an agenda shaped by what right-leaning Israeli commentator Daniel Gordis recently labeled not a traditional right-wing Israeli coalition, but like a “gang of thugs”: a coalition consisting of an “open fascist” like Bezalel Smotrich who recently publicly called for “wiping out” a Palestinian village, a homophobe like Avi Maoz, an inciter of violence like Itamar Ben-Gvir, and a convicted corrupt politician like Aryeh Deri.

In this sense, there’s a clear difference between the Israeli right’s pursuit of unrestrained power to implement its agenda and a more traditional conservative legal approach that’s deeply skeptical of centralized power and protective of individual rights. In line with the adage that absolute power corrupts absolutely, politicians with unrestrained power will always ultimately undermine the type of fundamental rights and freedoms that traditional right-wingers know are critical in a democracy. These include freedom of speech, academic and press freedom, and religious freedom, which in Israel includes freedom of practice for all Jewish denominations. Countries lacking clearly independent judicial systems and with governments with few if any limits on their power are also hotbeds for corruption. (exactly like that which Netanyahu is on trial for as he entirely coincidentally seeks to “reform” the judicial system) Such countries are also bad for business – particularly the type of innovation we see in Israel’s world-class hi-tech and defense sectors – as they have unstable business climates that scare away foreign investors and invite crony capitalism.

These shifts away from democratic norms are not only concerning in themselves, but they are at the root of the tangible damage to Israel that experts warn is likely should the overhaul proceed. Israel is a small country with a smaller margin for error facing complex challenges, and such prospective damage threatens nearly every aspect of Israel’s resilience. These include US-Israel and Israel-Diaspora relations, our foreign trade and investment-reliant economy (including the “Start-Up Nation”), and our diplomatic standing and ability to develop and fund advanced defense technologies. Increasing numbers of reservists are indicating they’ll refuse to serve under a non-democratic regime that not only goes against their values but because undermining Israel’s internationally-recognized legal system leaves many more vulnerable to malicious prosecution on distorted war crimes charges abroad.

Our society’s very unity is also at risk not only because of the dangers posed to the rights of women, minorities, and other groups by handing a Smotrich-Ben Gvir-Maoz-backed government absolute power, but because of the government’s ongoing aggressive, divisive legislative push lacking any honest attempt at negotiation or reaching consensus. All of this is why a vast majority of Israelis support halting the government’s sprint to implement its current overhaul proposal.

‘Traitors, paid foreign agents, and worse’

Traditionally at the core of conservatism around the world is constitutionalism: the idea that governmental authority is determined by a set of rules, not the goodwill of elected politicians. The latter is precisely what leading Israeli right-wing politicians have openly admitted will be the case here following their overhaul. “Don’t worry, trust us,” they publicly proclaim. Any true conservative knows better. Netanyahu’s judicial overhaul is in its very essence, anti-constitutionalism: a rapid change with a narrow majority of his country’s functional constitutional order to centralize power in politicians’ hands without any formalization of fundamental rights.

This stands in sharp contrast to how, for example, the American constitutional model smartly requires changes to the rules of the democratic game be made: through a process that takes time and requires broad consensus. It is also a far cry from the Israeli right wing’s traditional support for a strong and independent Supreme Court, as expressed by Menachem Begin and even just a few years ago by Prime Minister Netanyahu himself before his criminal trial. Those on the right should evaluate the nature of the proposed overhaul through a simple framework: by asking themselves what a future left-wing government could do with the unrestrained power they now seek to grant themselves. (Granted, other aspects of the agenda they’ve laid out seem rooted in the goal of undemocratically preventing this prospect altogether.)

Perhaps unsurprisingly, among the judicial overhaul’s most fervent opponents are many traditionally right-leaning Russian-Israelis. They recognize these moves better than anyone, understand the dangers they pose, and are speaking out. If one believes their personal fears are exaggerated, consider what they see in the government’s tactics advancing the plan: just as in Russia or Hungary (a country whose regime some backers of the judicial overhaul seem to see as a model for Israel), they see prominent supporters of the overhaul here referring to their opponents as traitors, paid foreign agents, and worse.

Because the government finds itself on the opposite side of most of Israel’s former senior security officials and a growing set of reserve combat pilots and army special forces who strongly oppose the overhaul, this tactic has largely backfired. But if it looks like a duck, walks like a duck, and talks like a duck: it’s probably a duck. Many Russian-Israelis are saying they know the overhaul plan is an anti-democratic duck not only because of its looks, but because it is walking and talking like one, too. Interestingly, at the same time the American right is making gains among immigrants by claiming its opponents are in line with the worst aspects of regimes in the countries whence those immigrants came, the Israeli right is losing some immigrants’ support by seemingly embracing such aspects.

As someone with a more conservative view when it comes to the role of the judiciary, I am certainly no fan of every Israeli Supreme Court decision. I am open to serious dialogue about reforming Israel’s undeniably imperfect legal system. But the hugely divisive judicial overhaul being rammed through today without any dialogue or consensus is not a balanced recalibration of powers. It isn’t about promoting traditional conservative jurisprudence. It does not, as its proponents say to deter critics, bring Israel’s judicial system in line with others around the world, including the American one. In practice, it more accurately reflects the American left’s recent plans to pack the Supreme Court simply because they disliked specific decisions. It’s a plan that is not compatible with modern liberal democracy – or with a small, diverse country facing serious challenges that require strong social cohesion. It is not only antithetical to the vision of constitutionalism and personal liberty that conservatives generally hold dear, but to the values on which both Zionism and Israel were founded and thrived.

During my work in the Republican Party, I saw first-hand the rise of ultra-nationalist fringe theories and their influence on American politics and society. In Israel, we already have a big enough extremism problem: we don’t need to compound it by allowing such a fringe legal vision to be put into practice here.

About the Author
Daniel Livingston served as International Media Advisor to then-Prime Minister and Foreign Minister Yair Lapid and as Political Director for Congressman Brian Fitzpatrick (R-PA).
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