There is a striking parallel between the comments being heard from the left in the United States about the meaning of a possible Republican victory November 8th, and from the left in the United States—as much as or more than in Israel—about the meaning of the victory of the right in the Israeli election on November 1st. The meaning, we are told, is the end of democracy. That’s what President Biden and Hillary Clinton said on November 2nd about our elections, and President Obama said “democracy is on the ballot.” It is what we heard from commentators such as Thomas Friedman about the Israeli results and our own election.
Domestic politics is not my subject here; Israel is. What actually happened? There was a very high turnout of voters—over 70 percent, substantially higher than is typical in the United States (and this was the fifth election in under four years)—and it split almost down the middle. The parties on the right had only 30,000 more votes than the parties on the left, out of 4.7 million votes cast. The right, led by former prime minister Netanyahu, will have 64 seats in the Knesset and the left will have 56 mostly because the right was well-led, clever, and united, while the parties on the left and the Arab parties could not unite and their divisions defeated them in Israel’s complex system.
The attacks on the outcome have several roots. One source is the mistrust (sometimes hatred) of Netanyahu that’s widely felt on the left, and is reflected in many newspaper columns here and in Israel (as it was especially in the Obama years). But the strongest comments are about the Religious Zionist Party, now the third largest with 14 Knesset seats, and its two leaders, Bezalel Smotrich and Itamar Ben Gvir, and about the extremist and anti-democratic programs they will impose.
I would never consider voting for that party or for either man were I an Israeli, for several reasons that begin with the fact that I’m a conservative and neither of them is. Neither has shown any grasp of the reforms needed to make Israel a better governed and more prosperous country, in my view. They say little or nothing about the stifling bureaucracy and the need for economic reform, for example. They have also taken a variety of positions, and more significantly sometimes used words or taken poses, meant to be provocative and which were entirely irresponsible.
But the critics on the left here have gone well over the line in their comments and predictions.
For one thing, Netanyahu is a known quantity as prime minister because he was Israel’s longest-serving prime minister ever. His party is by far the largest in his coalition and as his long record shows he is as canny a politician as Israel has produced. Moreover, he has in the main been pretty prudent as a leader, avoiding war and conflict whenever possible and watching carefully where the voters are. It is not at all to be assumed that the government will be under the thumb of Ben Gvir and or Smotrich, who are new and untested as government officials. Moreover, though they joined to run in this election, they actually come from separate parties and may soon find themselves rivals. If it is useful to Netanyahu to have this happen, he has the wiles to encourage it.
A good example of what I mean is the fear repeatedly stated that Israel’s widely-admired policies toward LGBT citizens will change. Last week, the Times of Israel carried a story with this headline: “Slapping down far-right partners, Netanyahu vows no change to LGBT status quo.” I suspect we will see more of this as the months pass. We do not really know what the balance of power will be, issue by issue, nor can it easily be predicted. But here is one prediction shot down even before the new government has taken office.
A better example is the accusation that Israel’s legal system will be destroyed. To understand the story fully, read the excellent article in National Review last week by two leaders of Israel’s Law & Liberty Forum, Aylana Meisel-Diament and Yonatan Green, entitled “Judicial Reform in Israel is Urgent and Necessary.” As a general comment, the reforms being proposed on the right would actually make Israel’s system look more like ours. For instance, critics say it is outrageous that Israeli reformers propose ministers be able to appoint their legal advisers. Today those extremely powerful lawyers can overrule some ministerial decisions, yet are career bureaucrats whom the minister has no hand in selecting. But what the reformers on the right are proposing is precisely what we have in the United States and has never been considered an assault on democracy: that ministers appoint their own lawyers. Here, the president appoints cabinet secretaries, and they select their general counsels.
Will reforms destroy Israel’s supreme court by allowing the Knesset to override its decisions? We do not permit this in the United States; when the U.S. Supreme Court declares a law unconstitutional, Congress can do nothing (unless it is able to remove the part of the law ruled unacceptable and thereby save the rest) and only a constitutional amendment can change the outcome. But of course, we have a written constitution; Israel does not. On what basis then does their supreme court overrule Knesset decisions? What standards can it possibly use? The reformers at the Law & Liberty Forum (which is supported by the Tikvah Fund, whose board I chair) ask the same question, and their answer is that the judges simply make it up. They decide what the constitution would sort of look like if they had one, and they decide which laws look OK and which do not. As Meisel-Diament and Green put it, the Israeli Supreme Court “endowed itself with the power of judicial review of parliamentary legislation despite the absence of a duly ratified constitutional document. And the Court departed from its own tradition of restraint to effectively eliminate any limitation on standing and subject-matter jurisdiction in constitutional cases. These are just a few elements of a long and continuing appropriation of policy-making power by the judiciary, whose radical innovations were lambasted even by international legal thinkers such as Judge Richard Posner over 15 years ago.”
What makes that system even worse is that, while in our system the president appoints Supreme Court justices with the advice and consent of the Senate, thus involving elected organs of government, in Israel the judges have a powerful hand in selecting themselves. In Israel, judges are selected by a 9-member committee of which four members represent the elected branches; three members are Supreme Court justices and two represent the Bar Association. And because a candidate for the court needs seven yes votes, the three members of the committee who are Supreme Court justices can block anyone they don’t care to have as a new colleague. Reforming that system is not radical, and as noted would bring Israel’s system closer to that in many other countries including the United States.
Another reform would eliminate the crime of “breach of trust,” which in the Israeli system has been complained of for decades as overly vague. See the longer explanation by Meisel-Diament and Green for details, but in my view the issue there is retroactivity. The reform should not in my view be used to defeat the indictments of Netanyahu–and it may be.
The larger question remains judicial review of legislation. Here, we have a written constitution and we have judicial review; in other countries without a written constitution, including the United Kingdom, judicial review is more limited. In some countries the federal or provincial parliaments can override certain judicial decisions, as in Canada. Meisel-Diament and Green urge that “The Israeli legal system is complicated, and the details matter. Observers ought to reserve judgment when considering the value of existing arrangements and of proposals for reform.” That’s good advice. Judicial review in a system without a written constitution runs great risks of allowing unelected judges to enforce their political views. Were I making an argument for it, that argument would be this: in Israel there is a 20 percent permanent minority, Arab Israelis, who cannot easily use the democratic system to protect their rights. I do not suggest I know where the proper balance lies and which exact reforms Israel needs, and I am not an Israeli. But I do wish American critics would stop implying or even stating that every reform proposal means the end of Israeli democracy. That critique is especially rich coming from Americans on the left who have tried to intimidate our own Supreme Court justices, have supported court-packing proposals because they do not like the outcomes in certain cases, or have sought to delegitimize the Court and decisions they do not like.
For myself, I wish that the Religious Zionist party were not in the governing coalition in Israel, and I hope Prime Minister Netanyahu will prevent them from imposing policies his previous governments avoided. How long Religious Zionism will be in government is uncertain, as is all Israeli politics. No one predicted four years ago that Israel would end up holding five elections in sequence to settle which coalition would lead, though one could certainly see the country moving to the right over the long term—and more recently as a reaction to Palestinian violence in the West Bank and Hamas attacks from Gaza, as well as the internal violence between Israeli Arabs and Jews in May 2021.
How long the Religious Zionist party, itself a coalition of three parties formed in 2021, will last is equally unclear. The recent election demonstrated once again how parties can rise and fall rapidly in Israeli elections. But I wish the doomsday predictions were suspended until we see what the policies of the new government actually are. Some of that criticism simply reflects the fact that a lot of people, perhaps including most American Jews, wanted the Lapid government to continue in power. Some of it reflects the political views of journalists who equally wanted the former coalition to continue. And some reflects genuine fear of statements Ben Gvir and Smotrich have made and positions they have espoused. But they are not prime minister; Israel’s toughest, wiliest, craftiest, and most experienced politician is—and he knows he presides over a nation whose electorate was split down the middle and which faces dangerous, even existential, security threats.
So let’s hold off on the doomsday talk. Churchill once said “Politics is not a game. It is an earnest business.” In Israel as in most places, it is both. The new government will be sworn in in a month or so, and we will see the balances of power within it shift over time, and watch it take and modify positions. As it acts, there will be plenty of opportunity to acknowledge, applaud, protest, or condemn. To express certainty today as to what it all means and what that government will do during the time that it exists, is simply to express one’s prejudices and one’s politics. It’s a bit like….well, like saying that American democracy will end if Republicans take the House on November 8th.
{Reposted from the author’s site}
