Judicial Overhaul: What Can Be Learned From The Arguments

On March 16, Knesset Speaker Amir Ohana celebrated his birthday, a date he shares with James Madison, American President, and a principal author of The Federalist Papers.  Among the classical languages Madison knew was Hebrew. I wonder if any of the people pushing for the package of proposals moving rapidly toward final legislative enactment have read the critically important essays he wrote. One of the great defects afflicting the current coalition’s legislative blitz redefining government institutions is not only the limited perspective it has fostered but also the occlusion it has bestowed on any fruitful investigation of the ideas and institutions necessary to produce what almost all Israelis say they want: a well-run democracy.

Justice Minister Yariv Levin and MK Simcha Rothman may believe an election victory conferred a mandate for this judicial overhaul with its ancillary legislation—all contradicting recent Supreme Court rulings–to return Aryeh Deri to the ministerial offices,  to allow Prime Minister Netanyahu to receive outside contributions for his legal expenses, and to ban the entry of foods not allowed on Passover into hospitals. The passage of these laws will extend the turbulence stirred up by this government. As The Federalist Papers showed, a true debate demands knowledge of history and respect for opposing arguments. James Madison managed fluency in both ancient history and political theory even as he created a future tense for managing diversity with institutions rather than by trying to homogenize values.  Justice Minister Levin and MK Rothman have repeatedly cited the United States, Canada, and New Zealand as among the genuine democracies with court appointment procedures or judicial review regulations like the changes they are proposing.  But without noting the considerable foundational differences between Israel and these countries on matters of suffrage, elections via constituencies or party lists, federalism, and demography, their references are, at the very least, politically shallow and at worst, if enacted, a magnification of power that could be truly volatile.

Is there a need for judicial reform that can accommodate the aims of the coalition and the protesters? There answer is possibly, yes and unfortunately, no.  A legal system that unfolded while the country was besieged from within and without expanded rapidly, typically not having the time to consider the consequences of one or another so-called Basic Law intended, initially, to serve as a temporary replacement for the constitution that would someday be composed. The controversial Basic Law on Human Dignity, for example, passed in 1992 by a vote of 32-21. More than half the Knesset didn’t bother showing up.  Ironically, the people who wrote canonical Biblical and Rabbinic texts could not manage to produce a written constitution. And the current climate of ideological enmity in Israel with one side insisting its legislation advances democracy while the other calls this same legislation a shattering of the country’s foundational principles, makes a shared nomenclature so necessary for compromise difficult to imagine.

The role of the judiciary is legitimately open to debate. It makes sense that some parties would want to advance the scope of its authority and some less so. But what is distinctive about these reforms is not so much that they have supporters, they actually have evangelists.  For those, like me, who can see merit in delineating the scope of judicial authority, the sheer passion for such radical change is puzzling. If the judiciary has expanded its reach, the inclination for curbing its power is understandable while the zeal for eviscerating it running as deeply as it does seems incomprehensible.

But it is worthwhile, at least, to ask: what is Israel about, at its best? All sides claim to embrace the Proclamation of Independence as setting out the ideals and values of the Jewish state. Both sides want to keep transforming these ideals into practice.  Protesters, like the advocates for judicial transformation, wish to be viewed as stewards scripting a set of political principles ensuring the reality of the aims laid out in the Proclamation even as the vision it incarnates remains unfulfilled. Because both sides have cast the stakes as existential, it seems important to try and offer what might be a way out of the impasse hoping it will be enough to keep Israel from the abyss.

First and foremost, it is important for the Prime Minister and advocates for judicial reforms, because they control the government, to acknowledge the legitimacy of the protests and not to dismiss them as filled with anarchists or with leftists who want to overturn the outcome of the recent election. They should also stop wheeling out the perennial denunciation of protesters as part of the founding Ashkenazi elite’s desperation to hold on to its last instrument of power. These charges set a lot of people off even on the editorial pages of the Wall Street Journal or Tablet who dusted down the protests as simply a revival of the ancient leftist ritual, attacking conservatives like Benjamin Netanyahu and his supporters for finding meaning in heterosexual marriage, family values, and religion.

Why? Because a simple look at the protesters makes these views very hard to believe. Many are retired from the security services and were appointed to their positions by the very person responsible for pushing an agenda that so quickly plunged the country into crisis—Prime Minister Benjamin Netanyahu. A large number come from banking or the economic sectors that have brought the country its prosperity and growth. These were the very same people so critical to bringing the financial reforms advanced by Netanyahu as Treasury Minister and later as Prime Minister. Note to rabid Bibi supporters: Bibi can boast about his achievements as his alone, and he typically does. But financial and economic reforms came with more than a little help from experts. And the geography of the protests has forged its own brand of unity even in cities like Beersheva, strongholds of the Likud or in towns like Givat Shmuel with a strong religious presence. In the eleventh week of protests, people-religious and secular— turned out in pouring rain in Jerusalem. Druze and Jews joined together in Carmiel. Bedouin showed up in Beersheva. There was a protest drawing settlers to Efrat. It goes without saying that comparing them to the Nazi storm troopers who set fire to the Reichstag is hooey, if not, despicable.

Second, if the rhetoric of the protesters is overheated, it is not ineffective. Many Israelis see an existential danger in this governing coalition sensing in these initial laws only a prelude to more lethal attacks on the nation and on the freedoms its citizens take for granted and defend because they confer a powerful sense of common purpose. The brave men and women who risk their lives in service for Israel are in the streets because they care deeply about the public values embraced by a Jewish state.

Israel has had an amazing run of successes: winning wars, expanding borders, crushing terrorism, raising the standard of living, increasing the population, becoming a cachet for innovative technology even across Arab and Muslim lands. But while simultaneously pumping up Jewish national identity, the current government has unleashed a rhetorical war eroding its social foundations.  The appointment of people skilled in polemical attacks to sensitive ministries while assigning overlapping and poorly defined duties to ministers based on politics rather than on skills or administrative expertise has destroyed Benjamin Netanyahu’s status as a pragmatic, competent manager of public affairs.  The Prime Minister has always been more eager to claim credit for his policy achievements than accept responsibility for the failures. Compare his statements on the start-up economy versus his limited comments on the Meron Disaster that occurred while he was in office.

Finally, consider the controversy about what to call the violent attacks by Jewish settlers in Hawara that took place in response to the terrorist killing of two brothers from Har Bracha. Labeling the hours long attack a pogrom gave a new sharp edge to the anxiety over the Palestinian conflict that has been a breeding ground in Israel not only for violence but also for political turmoil.

Many scholars were quick to draw distinctions between events in Hawara and the violence to which Jews were subjected in Russia and in other parts of Eastern Europe.  Gil Troy noted that these attacks came from people marginal to Israeli society and that the Prime Minister urged people to follow the law and allow the army to find the terrorists. It is difficult to measure marginal with any accuracy but the Russian pogroms filled with recently freed serfs or with revolutionaries were every bit as marginal to the Czarist regime than the price-tag settlers who most likely voted for Religious-Zionist-Jewish Power in the last election. And leaders of both these parties, now in charge of important government ministries—along with 50 backers of the coalition–quickly signaled their sympathy with the rampage and for easing any official action taken against the perpetrators. Newspapers reported hundreds of people setting fire to homes and stores in the town. Four were arrested. That does not sound like accountability.

Calling out the violence as a pogrom weaves together Jewish and Israeli history in a very uneasy synthesis, but perhaps, it is an important one if only, as a reckoning with actions gone wrong. That might be the best way to start bringing Israel together. Let every politician asking for trust promise not to misuse it or weave it into some collage where it is easily buried or lost.  And most of all, insist that politicians take responsibility for things gone wrong.

Donna Robinson Divine

Morningstar Family Professor of Jewish Studies and Professor of Government, Emerita

Smith College