Israel’s Judicial Agenda: How Did This Happen?

The current disturbances engulfing Israel seem to have awakened a panorama of horrors summoning comparisons to those associated with איכה [Lamentations]. That there is a linguistic link in Hebrew between Lamentations and ‘how’ makes an obvious question insistent: how can an Israeli politician known for his brilliance in maneuvering his way to power, descend into an abyss of public disapproval so soon after his triumphant return to office?

Because the dynamics underlaying the current crisis originated in the last election and are still in play, they are worth recounting. Let me begin with the high threshold for votes to enter the Knesset. Benjamin Netanyahu grasped that to reach 3.25% of the votes cast required the unity of political movements–even those once deemed extreme and unfit for power—willing to back his return to the Prime Minister’s Office. He brokered the joint electoral alliance bringing together Religious Zionism with Otzma Yehudit provocateurs and the explicitly homophobic Noam, reluctantly acknowledging during the campaign that he would have to offer their leaders important ministerial positions.

Contrast this with the divisions within the outgoing government. Labor Party’s head, Merav Michaeli, refused to unite with Meretz, although polls showed both parties struggling for enough votes to enter the Knesset. Balad’s decision to break away from the Arab Joint List proved as costly for the party as for the overall composition of the Knesset since it failed to secure sufficient votes to meet the requirement for representation. No less damaging was the focus of Yair Lapid and Beny Gantz on their differences than on their shared priorities and values. The combination of a unity that indicated an end to election gridlock on one side of the political spectrum with the prospect of its perpetuation on the other proved fateful: tens of thousands of votes thrown out for the one versus a four-vote margin and legislative dominance for the other.

The election itself still doesn’t explain why the coalition centered its agenda around the issue of judicial reform, a topic barely mentioned during the campaign. One important reason is that voting to give Benjamin Netanyahu a fresh lease on political life may have been the one point of agreement among his coalition partners. Their radically different agendas and priorities set them as much apart from one another as from many of the parties in the opposition. Because Israel has become far more diverse and prosperous than it once was, the country’s very dynamism has stoked resentment and fear over how these changes will affect the Jewish state. Some coalition partners invoke their outsider status and their proud defiance of the elites commanding the economy who are presumed to be also drivers of social change. Lastly, the possibility of a decisive election outcome—the first in the past three and a half years of stalemated results—enabled the coalition partners to see in this moment the chance to remake Israeli society. [By my rough count, ten ministers have been appointed to structure a national mission around a set of Orthodox religious imperatives] Judicial reforms became the Velcro binding together the coalition and the route through which its various demands would be implemented.

The judicial overhaul is thus necessarily entangled with an onslaught of additional proposals and administrative regulations aimed at redeploying funds to impose religious imperatives over land, public space, and lifestyles, actions provoking a public outrage blunted thus far by the thin wire of judicial reform intended to weaken the Supreme Court’s authority over laws violating well-establish rights. Here is an admittedly simplified list of the forces driving the agenda toward the embrace of judicial reforms.

First, for Religious Zionism, enabling the sacred principle of building settlements regardless of legal precedents or of even longstanding international commitments demands a transformation of the judiciary whose rulings stand in the way of these ambitions. Second, exempting Yeshiva students from military service and expanding the domain of religious law, as they define it, cements Ultra-orthodox support for grinding down a judiciary whose institutions they deem illegitimate and whose rulings they disregard when they can. Third, diminishing legal restraints on government appointments and over the disbursal of its funds locked in Shas’s backing for the judicial reforms. Finally, Otzma Yehudit joined the government to strengthen security by widening the ambit of force deployed by the military and police without regard for international norms or values or for the wishes and interests of allies.

Judicial reform has long consumed Justice Minister Yariv Levin and Knesset Member Simcha Rotman whose singular focus and ramshackle execution yoked together politicians who did not appear worried about the day after or about whether the consequences would leapfrog the country into calamity. What will happen when economic growth is compromised and the government lacks funds to keep its coalition agreement promises? Can Israel really bring its Jewish citizens security, let alone, redemption if its military resources are stretched too thin and its actions lose international support because they disregard the rule of law?

Judicial reform has become associated with everything and nothing but unknowable outcomes. Consider the passage of the Basic Law eliminating the ‘reasonable’ standard as a tool for judicial deliberations regarding government appointments and policies. This was a measure that could have generated a consensus since legislators across the political spectrum have at various times railed against the deployment of what, to many, appears a particularly subjective example of legal reasoning. Instead of forming a consensus with the opposition to define the scope of ‘reasonableness,’ the coalition chose to eliminate it from the catalogue of principles thereby introducing yet more unclarity about what is likely to follow from this legislative achievement.

The discourse unleashed by the proposed judicial reforms provides a snapshot of the deep cleavages in Israel not only over the country’s system of governmental powers and its identity but also over how the costs are to be borne by this so-called rebalancing of the country’s political framework. The toxic rhetoric scaffolding the claims and counter claims on the judiciary’s power also measures the dissolution of an aspect of Israeli political culture once taken for granted and not well understood.

Perhaps because Israel was imagined long before it was founded—visions conjured in the religious canon, in fantasies, and in political treatises—the country could never be entirely liberated from the idea of Zion no matter how far it departed from reality. Thus did Zionist visions pull in different directions often scarred by having to come to terms with the fact that the promises of founding a Jewish state on the purest of Zionist ambitions could not be effected. The standards generated by the Zionist imperatives to build a nation and state intended to be both “normal” and “exceptional” encouraged expectations that could never be met but could never be totally dismissed. And while the differences could often be hidden in abstractions or ambiguous language, they could not be entirely avoided.

It is less a revelation than a reminder to say that no democracy emerged fully formed in 1948 or that the  country’s political terrain looked quite different than it does today. In 1948, the issue was the dispersal not the potential concentration of power. Setting up a government required not only transferring the authority of Yishuv institutions like the Jewish Agency and Histadrut into a structure of government but also downgrading them into voluntary associations and constituents of a yet to be created ‘civil’ society.

No wonder the people of the book who put together the words and phrases for the canonical Biblical and Rabbinic texts could not manage to produce a written constitution. There seemed more urgent tasks at hand. An economy broken by war was overwhelmed by the masses arriving without even the language to explain their problems. Epidemics periodically erupted killing young and old as they ran through the tents or huts hastily constructed to provide some protection from the weather that could be as brutal in the summer as in the winter. There was a framework of order, but it lacked the capacity to meet the population’s basic needs. Complicating these difficulties was the fact that many officials seemed more concerned about whether new immigrants felt bound to the country’s national purpose than about whether the state could deliver essential goods and services to the country’s new citizens.

While Israel’s foundational socialist Zionist creed could take credit for establishing a Jewish state, that ideology increasingly lost vigor in trying to sustain it. Its idioms seemed both unpopular and a non-response to the country’s serious problems, at least according to its newly arrived citizens. Complaints coming from immigrants from Middle Eastern countries sent clear signals that while they accepted the Zionist project, they also deemed it insufficient without attention to individual rights as both a norm and as a standard for the operation of the political order. It was these immigrants who thrust the idea of individual rights first into petitions listing their grievances and then into the country’s public discourse. Parliamentary debates that typically contained the familiar echoes of Zionism’s ambitions for national transformation were soon mixed with the language of individual rights.

The legitimacy for policies now stapled to a mission serving both nation and individual could no longer exclusively reside within the political party system. And what was lost by the political parties was picked up, or some might say recovered, by the Supreme Court. It is ironic that descendants of the immigrants who embraced individual rights are today calling for the Israeli institution charged with protecting these sacred freedoms to be degraded.

Citizenship in Israel generates a series of obligations rather than a ‘bill’ of individual rights. But there is a strong albeit implicit commitment to respect individual rights. What has evolved is a Zionism that has been defined to manage and preserve the contradictions between ‘normal’ and ‘exceptional’ not to resolve or dissolve them. They co-exist because they are, in fact, co-dependent. One drives economic growth, military power, global prestige, and international alliances while the other sustains traditions, solidarity, and historical memory. One increases the value of a Jewish state; the other, adds to its endurance.

This delicate balancing of cultural contradictions in Israel, maintained by the expectation that citizens will assume and discharge obligations is under attack by the coalition’s agenda. Precisely because that agenda aims to curate a national mission more uniform and more heavily dependent on Rabbinic institutions for its legitimacy, whatever the intentions, it is redefining the Jewish state and turning Israel into something other than itself. The mere specter of such change has terrified Israelis. Hundreds of thousands have created a new Saturday night ritual: they gather in the cities and towns across the country to show not only how grateful they are for what the country has been able to accomplish and offer but also how important the Zionist project is for the Jewish state’s future as well. In the 31^st week of protests, Israeli men and women, not for the first time, seized the  words of their national anthem as their rallying cry, singing that the people ‘have not yet lost their hope.’  They will do whatever it takes for however long to restore Zionism to its proper position and more importantly to the only place to call home for the Jewish people.