The judicial reform may hinge on divisions of class and ethnicity

How did the ethnic genie get released from the bottle and become a decisive factor in pitting supporters of “judicial reform” against opponents of the “regime change”? How did the protests become a battle ground between what are termed — the “first” and “second” Israel — the “haves” and the “have-nots”? The decision was eventually made to try and reach a broad consensus on a constitutional framework for the State of Israel, instead of attempting to impose a decision by the tyranny of the majority. Why, then were symbols such as “saison” or “Altalena” bandied about portraying the Right as victims? What caused Mizrahi Israelis to confess they feel they are second-class citizens in the country, a phrase that in recent years has also been used by Israeli Arabs?

Let us admit that we have yet to crack the enigma of ethnicity in Israeli politics. The annual Israeli Democracy Index compiled by the Israel Democracy Institute since 2003, as well as earlier surveys, reveal that when asked which of the “traditional” sources of tension (ideological, religious, nationalist and ethnic rifts) is the most serious, Israeli tend to rank the rift between Israel’s Jewish and Arab citizens in first place, while tension among ethnic groups in Jewish society has consistently ranked as the least serious threat to Israeli society. So how come that it has now become the most volatile fuel, fanning the fires of electoral and political unrest?

One cannot help smile at the paradoxical situation in which the “second Israel” (and the ultra-Orthodox parties) support the judicial reform championed by the Kohelet Forum. If this reform is enacted, today’s Second Israel will deteriorate to Tenth Israel, if not even lower down on the scale. Israel will become an anti-solidarity country, in which the disadvantaged will become even more disadvantaged and weaker, and the state will divest itself of any responsibility for social welfare, healthcare and education.

Reading the Kohelet Forum’s policy papers, its vision of a society ruled by piggish capitalism is very clear. Their research talk of a society in which the strong people- hi-tech moguls and elites such as pilots- become even more powerful, and the weaker sectors of society will fall by the wayside. Underlying the vision of “promoting individuals’ rights” is the concept of “laissez fair” in which the state lets the free market operate without any checks and balances, exemplified by their proposal for “judicial reform” which would grant unlimited power for the strongest. This is why Kohelet advocates dismantling labor unions (recently calling for the dismantling of the Israel Medical Association) and is opposed to free education for preschoolers (with dire warnings against such plans, saying it will increase birth rates among the ultra-Orthodox, and among poorer sectors of society). This social and economic vision is so foreign to Israeli society in which care for the convert, orphan and widow is not a luxury, but rather the state’s moral obligation. When this vision is realized, who will the weakest sectors of society turn to for protection to ensure that they maintain a minimum level of dignity? To the diluted courts?

The Supreme Court’s rulings have protected the rights of the vulnerable and disenfranchised, even though it has not been sufficiently active in enshrining social and economic rights in law. One of the 22 cases in which the Supreme Court struck down legislation, or specific clauses in legislation passed by the Knesset, concerned National Insurance policy that did not award income supplements to car owners. The Supreme Court ruled that this policy infringes on human dignity. In another ruling, the Supreme Court was criticized for “judicial activism” when the “Mizrahi Democratic Rainbow Coalition” (Keshet Demokratit) appealed against the Israel Land Administration for a just and equal distribution of land to all citizens, and not only to kibbutzim and moshavim. Regarding ethnic discrimination in ultra-Orthodox educational institutions, the Supreme Court ruled that not accepting girls to a school just because they are of Mizrahi origins, is illegal.

It is true that there are not many judges from Mizrahi descent, the exception being Judge Edmond Levy. However, in recent years we are seeing the first signs of change. The number of Jewish judges from Israel’s social periphery has doubled in the past three decades. In any case, the proposed change in the judicial selection procedure will not guarantee diversity, and may even harm the professionalism of this process. Making the courts more diverse is vital, but politicizing the judicial selection process is not the way to achieve this goal. The way to do so is by increasing diversity in politics using a bottom-up approach; to raise the number of attorneys from all ethnic backgrounds; to encourage youngsters to study law; to encourage people to apply for jobs as judicial assistants, and to promote professional development in the legal field. No one would want a judge to preside over a criminal case just because he or she is Mizrahi, or religious, or Arab. What is most important for all of us is that the judicial system be professional, but that does not imply that it cannot be diverse. People prefer to choose others who are similar to them, but this bias is found in many areas of life, not just the judiciary. We must break free of this bias, and ensure that the process of evaluating candidates’ suitability for serving as judges, not be tainted by prejudice and bias. Turning judicial appointments into political ones will not solve the problem.

In the present context, it appears that what really fanned the flames, beside unswerving support for Netanyahu, was the sense of rage, insult and discrimination, which was reminiscent of the emotions felt by the Black Panther movement in the early 1970s. Today, it may be difficult to believe, but the “Revolt of the Moroccans” (the headline Ha’olam HaZeh newspaper after the Wadi Salib events) was actually born in the radical left-wing, that strongly supported the protests at the time. In the natural order of things, and were it not for the partially understandable antagonism that Israelis of North African descent feel towards Mapai (the original Labor party), we would expect that blue-collar workers, such as the Air Force technician who was interviewed during a demonstration in support of the judicial “reform,” would identify with more “left-wing” values of social solidarity, equality, and distributive justice. And these are the polar opposites of the values and messages proposed by the Kohelet Forum.

The ethnic genie was released from the bottle almost by chance during the present crisis, and it fueled the hate, fury and insult of the “have-nots” towards the “haves.” The hatred the Mizrahi population feel toward the Supreme Court feeds mainly on populistic feelings of hatred for any type of elitism, especially towards professionals coming from the civil service, physicians, lawyers, and academics.

We really need to do some soul-searching. The liberal-democratic camp, most of whose members are of Ashkenazi origins, needs to take a long hard look at today’s reality. Many children do not even know what their family’s ethnic background is, and “mixed marriages” feels like a term from a different era. Nevertheless, we must ask ourselves why the question of ethnicity erupts so easily from below the surface?

A combination of various factors such as hatred of elite groups including Supreme Court judges who come from similar backgrounds; resentment towards pilots and hi-tech workers who enjoy what may be excessive admiration in the Israeli ethos; a sense of ongoing victimhood that leads to increased support for Netanyahu, all came together to create “minoritized majorities” in the Right. This term was coined by Canadian philosopher Will Kymlicka to describe a majority group that perceives itself as a threatened minority.

When a specific sector is unsure of itself in the employment, economic and identity arenas, and feels there is no hope for the future, it will be attracted to and gravitate towards a sense of feeling threatened. This is fertile ground on which victimhood, conspiracy theoriesת and xenophobia thrive. People who are unsure of themselves cannot accept complexity and the “other”. When a group or an individual feel threatened and persecuted or in a permanent state of victimhood, they tend to exaggerate l and connect the dots between unconnected events to create a world view that reinforces their sense of being threatened.

And with all due respect to liberal values, those on the margins of society who feel they are transparent, cannot be expected to believe in fighting for the realization of values such as justice, freedom, and equality that are purportedly granted by liberal democracies.

This is also one of the reasons why Arab citizens have not joined the current wave of protests. They seem to have been relegated to the status of third-class citizens. It is paradoxical that those who took to the streets to protect the Supreme Court are probably those who are least likely to need its protection. The Supreme Court is an inherently anti-majoritarian entity that defends those whose voices are not heard in the other forums of democracies, those who are not adequately represented, or disenfranchised. The Supreme Court’s role is to defend those citizens without a voice, the ‘other’. It protects the rights of prisoners- a silent minority without anyone to speak out for them. The Supreme Court ruled against privatizing the prison system, stating that prisoners cannot be treated as sub-humans, just for financial gain.

The “judicial reform” has now been temporarily halted. This is now an opportunity to try to reach a broad consensus for a constitutional framework for Israel. Yet, it is somewhat difficult to believe that what we have not achieved in 75 years of statehood, will happen within the next three months. More importantly, the current crisis has revealed that there will always be a cause or reason that attracts all the anger and hatred that some people feel. What we now need to do, above anything else, is to offer hope. Hope that sprouts from the ground, bottom-up from school children, through higher education institutes to the workforce.