Israeli Prime Minister Benjamin Netanyahu, fresh from passing the first of his proposed judicial reforms, will next tackle an even more contentious proposal: democratizing the process through which judges are selected.
Currently, judges are chosen by a committee that includes judges, members of the Israeli bar association, and a number of members of the parliament, or Knesset. In practice, the judges and the bar association form a bloc that allows the judiciary and the legal profession to control the process. The result has been a judiciary that is left-leaning and ethnically skewed toward the secular, Ashkenazi elite, which damages the courts’ credibility.
As the Jerusalem Post notes, Netanyahu’s proposal, which he suspended in the spring to allow for negotiations, “would have removed the Bar Association representatives and introduced an expanded panel with more elected officials.” Critics complained that the proposal “would have created an automatic majority for any coalition” in parliament. That might surprise observers in the U.S., where elected politicians control every aspect of judicial selection. When the White House and the Senate are controlled by the same party, the minority barely has any say at all, thanks to the end of the filibuster for judicial nominees — a change first initiated by Democrats.
It might seem odd that the Biden administration would object so vehemently to this reform, among others, since it still leaves a process that is less political than the U.S. one, and more democratic than the status quo.
In fact, in much of the U.S., judges are directly elected — the result of populist reforms that emerged in the mid-19th century, roughly 75 years into American democracy, the same age Israeli democracy finds itself now.
But the White House has not bothered to talk about the substance of Netanyahu’s judicial reforms. Instead it has voiced concerns about the way in which the reforms are being adopted, over protests and objections.
Biden is not exactly coming to the debate with clean hands. His administration has backed the Israeli opposition, and the State Department funds at least one of the supposedly “pro-democracy” groups that is fomenting the unrest in Israel’s streets. Moreover, while insisting that Israel’s changes have the “broadest possible consensus,” Biden and his own party have pushed through major laws on straight party-line votes.
It would be better, certainly, if Israel’s political parties could compromise. There are several reasons they are finding this difficult. First, Israel has no written constitution, other than a set of “Basic Laws” that have been passed on simple majority votes. There is no supermajority required to amend these laws, meaning that any government — including a future left-wing government — can amend them. All that is needed is political will.
That brings up the second reason compromise is difficult. Israel’s right-wing parties have long resented the growing power of the left-wing judiciary — which activist judges began seizing, unilaterally and without any “consensus,” in the 1990s. But it took several recent decisions — notably, an intrusion in a controversial gas deal with Lebanon — and the prosecution of Netanyahu on flimsy charges to galvanize Israel’s conservatives to act.
There’s a lesson for America in that: if you want your judiciary to have credibility, don’t weaponize it, and the powers of law enforcement more generally, against the political opposition. (Note: this lesson is being ignored.)
The third and perhaps most important reason compromise is difficult is that there are long-simmering tensions between secular and religious Jews that are coming to the surface. Most of Israel’s early pioneers were secular, but the religious population has a higher birth rate. In the early days, Israel exempted religious scholars from conscription into the military, but over time that means a growing share of the population is avoiding service.
Secular Israelis resent shouldering the extra burden — especially as religious parties gain clout and push for public observances of Jewish laws, such as Sabbath restrictions, while demanding money for religious schools.
Many of the arguments by left-wing Israelis against the judicial reforms have less to do with the substance, and more with the widely held fear that religious parties will be able to exert more power with less judicial restraint.
Finally, there is the figure of Netanyahu. He has been in office, with interruptions, longer than any other Israeli prime minister. His left-wing opponents are politically immature and lack philosophical depth; and no right-wing successor appears to have emerged. He is resented for sticking around, but he is also as irreplaceable as a politician can be. He is both divisive, and unifying. Only he could have prompted hundreds of thousands of Israelis — on both sides — to march in the streets. But only he would have the courage to stare down the media, the opposition, and several U.S. presidents to do what he believes is in the long-term interest of his country.
Netanyahu has offered to compromise with the opposition on judicial selection, and on the remaining reforms. He might have to: the opposition won a vote in the Knesset this spring to nominate a member to serve on the existing judicial selection committee, marking the high point of the opposition’s protests against reform. The justice minister has refused to allow the committee to meet until reform is passed, but it looks like sour grapes.
It is also unclear that Netanyahu will be able to hold his fractious coalition together for future party-line votes. The government held together for the first judicial reform — partly because the opposition overplayed its hand by encouraging military reservists to desert in protest. But Israelis are tired of the tumult.
Thus far, opposition leaders have rejected Netanyahu’s call to negotiate toward a November deadline. They seem emboldened by Biden’s support for their cause. But in many ways, the fate of Israel is in their hands. And if they do compromise, they face the wrath of their most ardent supporters in the streets.
This is not a test of democracy, but of leadership.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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