(JNS) Rabbi Rick Jacobs had a point when he was asked recently to defend his efforts to intervene in Israel’s debate about judicial reform. Jacobs, the head of the Union of Reform Judaism, said that it was hypocritical of those who back the Israeli government’s legislation to say that American Jews should shut up about controversies in the Jewish state. “That criticism is only ever used one-sidedly,” said Jacobs. “They say we can’t have an opinion, but then they say that ‘we need your help on this important issue in Congress.’”
Jacobs is right when he says American Jews have every right to voice their opinions about anything that happens in Israel. The Jewish state is important to all of the Jewish people.
But the problem with what’s been happening as he and the heads of a number of other leading Jewish groups have sought to involve themselves in the bitter dispute about judicial reform is that they are not merely stating opinions. The statements emanating from mainstream groups like the Jewish Federations of North America, liberal religious denominations and left-wing groups like the National Council of Jewish Women go further than that.
They are using what prestige and influence they have in the United States to lend credence to the kind of extremist discourse that is not just fueling a partisan effort to topple a democratically elected government. They’re also putting their stamp of approval on the kinds of arguments about Israeli democracy and the nature of its current government that gives aid and comfort to the forces of the intersectional and anti-Zionist far-left.
In doing so, they are not merely doing something outside of their organizational mission statements. Their role, however minimal it might be, in backing the chaos that is unfolding in Israel with claims that can be easily recycled by the Jewish state’s foes actually undermines their ability to do the jobs that are their core responsibility.
Why reform is necessary
Some may argue that the present situation—in which the Israeli Supreme Court has grabbed power for itself that no other court system in a democratic country possesses—should be preserved. Still, the argument for reform is strong and, contrary to the claims of the Israeli opposition, is rooted not in a desire on the part of a minority to create a tyranny but in an effort to preserve democracy.
Under former Chief Justice Aharon Barak, the court seized power for itself on an unprecedented scale granting the judiciary the right to intervene and to overrule the Knesset and the government on virtually any subject without having to cite the law. All it had to do was assert that some practice or decision didn’t fit the judges’ ideas about what is “reasonable.” It exercises judicial review over not just ordinary legislation but Israel’s Basic Laws, which form the basis for its unwritten constitution.
Many critics of the reform proposals put forward by Prime Minister Benjamin Netanyahu focus on the idea that a bare majority of the Knesset could overturn a court decision, and say that implementing it would give a government the ability to legislate tyranny and the wholescale deprivation of rights. That is a problematic provision and should be amenable to compromise. Or at least it would if the opposition were willing to concede the broad strokes of the reform plan that would still involve cutting back the power of the court, as well as preventing its membership from continuing to effectively name its successors—a situation that has more in common with oligarchies and autocratic regimes than democracies.
There are ways to modify the most controversial aspects of their proposals so as to allay the hyperbolic fears about “dictatorship.” Nevertheless, the current situation is actually worse than the nightmare scenarios spun by the opposition since it gives an unaccountable court the power to simply make up constitutional principles as it goes along, leading to the wholesale disenfranchisement of the electorate.
Rather than providing a needed check on the power of the legislative branch, the court has created a self-perpetuating juristocracy whose main purpose appears to be to preserve the rule of secular liberal and left-wing elites, as well as to ensure that right-wing and religious parties are effectively prevented from governing no matter how many times they win elections.
That may suit the tastes of the leaders of American groups that are themselves liberal and have little sympathy for Netanyahu and his allies. But whatever you want to call it, that isn’t democracy.
And while no one should dispute the right of the people to dissent or to demonstrate against policies or legislation they don’t like, that’s not the same thing as tolerating efforts to block highways, besiege family members of government officials in hair salons or halt the functioning of the economy or the government. Nor does it excuse the violent rhetoric and threats that have been issued by supposedly respectable members of the governing class and the public.
When the courts didn’t protect the right to dissent
The recent mass demonstrations call to mind the last time a government used its Knesset majority to legislate change that provoked mass dissent. Only that time, the tables were turned.
From 1993 to 1995, the government led by the late Prime Minister Yitzhak Rabin pushed ahead with the implementation of the Oslo Accords, empowering Yasser Arafat and the terrorist Palestine Liberation Organization he led. Those who opposed that government used inflammatory rhetoric and, yes, tried to block the highways.
At that time, Jewish Federations were not interested in the rights of the minority or preserving Israeli democracy. Since they agreed with the ruling Labor Party that Oslo was a triumph rather than the blood-soaked disaster that it proved to be, they wholeheartedly endorsed it. And they damned any dissenters in Israel or the United States as not merely wrong but as enemies of democracy because Rabin had the votes in the Knesset to do as he liked.
The Rabin government was even more contemptuous of its opponents than Netanyahu is now and treated dissent as criminal. Those who had led protests aimed at tying up the highways and attacks on the government not dissimilar to what’s happening in Israel today were charged and ultimately convicted of “sedition”—treasonous activity—in an outrageous breach of democratic norms. Yet the Israeli Supreme Court, led by Barak, didn’t intervene on their behalf.
This is important—and not just because the lessons that were supposedly drawn from this period of Israeli civil strife have generally been considered to hold that toleration of extreme and violent rhetoric can possibly lead to violent actions, such as Rabin’s tragic and appalling assassination by an extremist foe of his policies.
Rather, what should be gleaned from this sorry chapter of Israeli history, as with other such examples since then, that contrary to the claims that the current Israeli judicial system is a necessary check on the power of the prime minister and the Knesset that preserves democracy, in practice, it is nothing of the kind. It has merely been a political weapon wielded by one side in the country’s political wars. The court consistently intervenes to stop the right from governing and to preserve the rights of groups that oppose Netanyahu, but has always been happy to let the left crush its opponents when it is in power. Whether or not you sympathized with Rabin or his critics (or now with Netanyahu or his critics), that, too, isn’t democracy.
American intervention won’t help democracy
Those parts of the pro-Israel community, like AIPAC, who have stayed out of the maelstrom, are demonstrating their understanding that the best way to preserve democracy is to let the democratic process play out. That means letting Israel’s voters decide who governs as they did only four months ago when they gave Netanyahu’s coalition a clear majority. And then judging them on their performance at the next election.
Jacobs’s pretense that he is fighting for democracy doesn’t stand up to scrutiny. While those who have chosen the path of intervention in Israeli politics are free to do so, they lack both the humility that foreign observers should have in such situations and are, in this case, merely acting as a cheering section for one side in a political dispute. Their goal, as well as that of the leaders of the current protest, isn’t to preserve democracy but to topple Netanyahu—and to keep those who represent right-wing and religious voters from exercising meaningful power.
Just as important, by calling, as some have done, for the Biden administration to use its considerable power to join this effort to undo the last election, they are crossing a line that can lead only to splintering the ties between the United States and Israel, as well as between Israeli and American Jewry. In the process, they are also lending credence to the smears of left-wing opponents of Israel who also seek to deny that it is a democracy.
Those who love Israel must hope that ultimately reason prevails and that enough of the reforms can be passed so as to restore democracy while being done so in a way that will enable civil peace. That will mean compromise, though not the mob actions and efforts to delegitimize democratic opponents that Netanyahu’s foes are employing. Americans who want to assist that process of reconciliation will do well to speak with some circumspection, rather than embodying the worst of the partisan excesses that now characterize politics in both Washington and Jerusalem.
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