The Israeli “judicial revolution”, to which the Supreme Court claimed exceptional powers, did not materialize in one day. As the Israeli right now knows, it will not be undone in a single day either.
Prime Minister Benjamin Netanyahu’s stalling on judicial reform legislation has demoralized right-wing Israelis, who complain that even when they win elections, they are not allowed to govern. The defeated opposition at the polls took to the streets and is on its knees to make its way.
There is truth behind the bitterness. But the Israeli opposition has its own tale of woe, complaining that Mr. Netanyahu has enabled extremists who target the court not for its democratic impotence but for its defense of liberal values. Both sides claim that democracy is in danger, but each means something different by it. The right sees the political and demographic trends going its way and expects to win most of the upcoming elections. She worries that the court will not allow the people – mostly her own – to rule. The centre-left opposition sees the same trends and expects to lose most future elections. She worries that Israel’s elected rulers will trample on the rights of minorities – her rights.
This is why the Israeli opposition is now seeking a constitutional agreement. She fears she will never have a better leverage again. The right wants something it cannot grab on its own; It’s better to set the rules before you can.
The Israeli left was in power from the founding of Israel in 1948 until 1977. It could draft a constitution at any time but chose not to, claiming that there was too much to do and that it would be divisive. This was true, but the lack of a constitution did not harm a faction that expected to remain in power forever. Prime Minister David Ben-Gurion ruled through a bureaucracy dominated by Labor Zionists, largely unhindered by the naysayers of the judiciary or legislation.
The victory of the right-wing Menachem Begin in 1977 revitalized the Knesset and shocked the regime. The consensus was over. The court, which had previously established a fief, expanded its powers and became more active in the decades that followed, freeing itself from most restrictions while adhering to the old line of action.
The only reason the court did not clash with the Israeli right 10 or 15 years ago is that Mr Netanyahu was not uniquely interested in judicial reform. His priority was foreign affairs, war and peace, where he kept the leeway he needed. So far, internal reforms are a headache for Netanyahu, pushed by his new allies in the coalition. He would rather play chess with Iran than checkers with Yair Lapid.
But Netanyahu, shunned by the centrist parties and alienated by the courts, has become dependent on allies on his right. When his new coalition won 64 of 120 seats in November, most voters expected a tougher stance on terrorism. Instead, they found a proposal for a new judicial system reaching the finish line. Worse, Mr. Netanyahu, whom even pundits must concede is a steady hand, has been removed from the action. Israel’s attorney general declared the prime minister to have a conflict of interest with his corruption trial and ordered him not to get involved or talk about reform. The political leadership was deemed illegal.
This decapitated the reform effort from the start. The proposal was very aggressive – too much, too fast and too partisan. Stacking the Judicial Selection Committee and overriding court decisions by a simple majority are the plans of opportunists, not statesmen. Rather than allow the government to negotiate, these plans spurred a broad protest movement and alienated moderates. Moreover, with Mr. Netanyahu sidelined, who had the prestige to make this deal?
Novice politicians publicly defended the reforms, and the reforms were left undiluted for months, long after voters were nervous about them. Protests grew and foreign pressure increased. Technology companies have threatened to withdraw their capital. Important Army reservists vowed to desertion in protest.
When the Knesset finally shielded Mr. Netanyahu from impeachment for his work on judicial reform, he pushed for compromise, amending the worst ideas and obfuscating the most sensible reforms. But it’s too late. He was immediately met with rebellion not from the lower class of Israel, but from the extra class. The military leadership threw its weight against reform. The Federation of Trade Unions called a general strike and shut down the main airport, much of the economy and medical system, and even the Israeli embassies.
Business-minded voters are not unreasonably demanding stability and a return to normal life. Overwhelmed, Mr. Netanyahu called off the reform for a short while, buying time for the negotiations now underway. Even if he didn’t, the judges would have had popular and elite support to rule for their own good (no conflict there, it seems) and overturn the reforms. Many Israelis have come to believe what the court tells itself: that its extraordinary powers are the only thing keeping democracy alive.
In the ruins lie more than the right’s dreams of comprehensive reform. Israel’s reputation has been damaged, even among friends. Moreover, precedents have been set: If Israelis resent political change enough, they can threaten the country’s military readiness. They can invite foreign allies to put pressure on their government. They can block the main nodes of the country and threaten its economy. They can turn to military officers to intervene in non-military matters. Will the rising right-wing officers alert the “religious nationalists” in Israel? What will its rapidly growing Haredi, or ultra-Orthodox, population of democratic norms learn from this case?
Judicial reform has stalled, and could collapse entirely if it required agreement on a formal constitution. Most likely, the right will accept modest changes, which may have been Netanyahu’s favorite all along. Conservatives, after all, are supposed to understand the advantages of reform over revolution. Changes made over a longer period, in a process of trial and error, are more likely to stick and succeed.
Just a few years ago, Mr. Lapid, the leader of the Israeli opposition, complained about the unfettered jurisdiction. There is a deal to be done. The key may be recognizing that political trends and the “emerging majority” are not destiny. In this way Balagan He made it clear that the right-hander is quite capable of abusing his hand. The Likud is divided and its performance is uneven without Netanyahu at its helm. The rising far-right parties can’t stop embarrassing themselves. The Haredim in Israel are now a junior partner who extracts concessions in right-wing coalitions. But as the price of their support rises, or if they seek to take the place of the senior partner, the old Israeli right may find it has more in common with today’s center-left opposition.
The right will not always be in power. Centrists and liberals won’t always need the stadium to play Superman. Both sides in Israel have an interest in a system of government that allows the people to rule, protects the rights of minorities, and provides effective governance. Judicial reform is dead. Long live the judicial reform.
Mr. Kaufman is the journal’s letters editor.
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