The intense fight in Israel is for control; either the people win this round or the elite will keep power for themselves.
In the summer of 1991, I found myself in Australia. Beyond the beauty, there was something unusual about the country. It was the first time I had been in a country that was happily not the center of world attention. The US was the leader of the free world, and for better or worse, Israel was almost always in the headlines. The big news at the time in Sydney was that the Aussies were going to contribute one minesweeper to the coalition preparing to fight Saddam.
Israel is again in the news, and for all of the wrong reasons. There are wide-spread protests and strikes taking place against the present government’s attempt to push through a judicial reform. The government of Binyamin (Bibi) Netanyahu has the majority in its coalition; the question is whether it has the intestinal fortitude to push through the changes. That is the question of the hour and the country is being turned upside down as the proposed changes wend their way from Knesset committees to the full plenum for a vote.
In the thirty years I have been here, I have seen many protests. The ones in Jerusalem usually mean that there is no point trying to take a car out as all of the major streets are blocked. While there have been protests from all sides of the political spectrum, I have never seen any of them—even the massive ones—make any impact on the policies of the government of the time. Until now. The issue of judicial reform, like most issues of the day, depends on whom you ask as to its meaning. Those on the left claim that Netanyahu is trying to neuter the judiciary and concentrate all of the power in his hands. I have never seen anything like what is going on now. There are no flights out of the country as the major unions have gone on strike. Soldiers and pilots—Israel’s national treasure—refuse to show up for their mandatory reserve duties. In the past they would have been summarily jailed. The banks are all closed as is the Tel Aviv Stock Exchange, McDonald”s closed itself in protest; the only thing running is the train so as to bring protesters from the coast to Jerusalem. Is all of the protesting and shutting down of the country truly to “save democracy”, something that the left in the US likes to invoke when Republicans try to change something? The answer in my view is no.
Around thirty years ago, a jurist by the name of Aharon Barak became the chief justice of the sleepy Israeli supreme court. The court at the time was the highest court of appeal in the land. Its importance for the political realm was nil and most people never heard much from the court. Judge Barak decided that in looking at the foundational laws of the State of Israel (Israel has no formal constitution or separation of powers as in the US), he found room to expand the role of the court, namely to turn it into the final arbiter of all laws and political questions in the state. He removed the need for standing, so a guy with a felafel stand in Tel Aviv could file a complaint directly to the high court for anything that bothered him—say some ordinance in Jerusalem. “Hakol shafit” which translates to “everything is subject to litigation” turned the high court into the ultimate nexus of power in Israel. All laws from the Knesset could be shot down by the high court. All appointments by the government could be canceled. Agreements between the government and various groups such as the ultra-orthodox could be revoked. Even the separation barrier to keep terrorists out of Israel was in the purview of the 15 judges of the high court and they told the army where to build it.
The present reform has several different components, the most important of which are to limit the court’s ability to cancel laws passed by a majority of the democratically-elected Knesset. Only all 15 judges voting together to strike down such a law would cause the law to be null and void. Another feature of the reform is to change the way in which judges are selected; as things stand today, the mechanism for selection would never lead to a conservative jurist on the court. The new formula that gives the government more voting power in the selection would mean that a right-leaning judge could join the highest court in the land. And thus the massive protests and the virtual shutting down of the country.
The Left, with its failed approach to peace, has lost the Israeli populace. The previous government only came into existence with the help of an Islamist party. The Left no longer has enough votes to form a government of 61 or more Knesset members on its own. Its last place of power is with the court. As long as the supreme court in its present version can nullify any law or appointment or agreement, the Left will have the last word on all aspects of Israeli politics and society. The court even commanded the rabbinut to give kosher certification to a restaurant that was open on the Sabbath. The time is long overdue to return the supreme court to its original task—serving as an appellate court and little more. And the left is not taking that possibility sitting down. They are turning the country upside down, and I have never seen such fury in any political discussion, even at the time of removal of Jews from Gaza and northern Samaria twenty years ago.
One should hope that Bibi does not back down and that he will finish the reform. A person might say that he could not care less as Israel is far far away. But the fight we are witnessing is the same one a future Republican president will have with the permanent bureaucracy in Washington. Wait until he or she tries to get the Pentagon to focus on war-fighting or convince the IRS to leave small businesses alone or get the education department out of the trans debate. Do you think that those government workers are going to roll over for a DeSantis or Trump, when they are lauded and nearly deified for ignoring legal executive orders? The fight to take power from elite judges appointed by their peers and return it to the people will be coming in one form or another shortly to the US, and the protests and attempts to fight such a change may be as intense there as they currently are here.
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