Judicial Reforms: An Overview Of The Factors Driving The Protests

In recent weeks, many of us have undoubtedly heard about the thousands of Israelis protesting the judicial reforms of Israel’s new coalition government. Crowds protesting against the proposed changes to Israel's judicial system have exceeded the hundreds of thousands. The protests were spurred on by dire warnings from Israel's leading left wing politicians. Lapid warned the government that history would judge them and implored the coalition to “stop this insane legislation”. Former IDF Chief of Staff Benny Gantz warned in January that the government’s plans for judicial reform risked being responsible for civil war in Israeli society. He also urged the Israeli public “to demonstrate” against “the demolition of democracy”. The crisis escalated further, when reports surfaced in the media that many IDF reservists, including IAF pilots, refused to report for training and some even refused to report for service and the reserves. There were also a number of corporations that announced plans to leave Israel because of the judicial reform bill.

The coalition's plans have also sparked opposition abroad. At a joint press conference between Israeli Foreign Minister Eli Cohen and Germany’s Foreign Minister Analina Baerbock, the German minister hinted at her country’s concern with the legislation saying that "we abroad are concerned about some of the legislative plans in Israel." Aside from the criticism given by the German government, Israel’s closest ally, the United States has actively pushed back against the deal as well. US Ambassador Thomas Nides cautioned Israel about the move saying it needed to “pump the brakes" on the proposed reforms. Israel’s Minister of Diaspora Affairs, Amichai Chikli, responded to Ambassador Nides by telling him to “put the brakes on yourself and mind your own business.” In response, Nides countered that "most Israelis do not want America to stay out of their business”. President Biden also weighed in saying that he was “very concerned” about the reforms, that Israel “cannot continue down this road”, and that he had “made this clear” to the Israeli government.

One thing is certain; key members of the US government have dropped any pretense that they will not be actively involved with backing the demands of the protestors and, according to some, even funding them. This public confrontation between key political figures in the American and Israeli governments and the tone of the rhetoric used illustrates the level of frustration in the White House over the coalition's judicial reform efforts. It also doesn't help that the Biden Administration is filled with old members of the Obama administration, such as Secretary of State Tony Blinken, Ashton Carter and Jake Sullivan. Prime Minister (PM) Benjamin Netanyahu’s often-adversarial relationship with the Obama administration may have complicated his efforts to work with key members of Biden’s cabinet to ease American pressure over the reforms.

Another key obstacle for Netanyahu in gaining American sympathy for his reforms is the respect that many Americans have for the role of the Supreme Court and its importance in maintaining the balance of power between the three branches of government. Aside from the fact that the US and Israel share a common bond as democratic countries, the overlap between both the structures of both governments stops there. Since the early days of Israel’s statehood, the country's legal structure was created through a series of basic laws, a process that unquestionably played a role in increasing the confusion and debate over the proper legal role of the Supreme Court, since many of Israel’s basic laws can easily be overridden with a Knesset vote of a simple majority of 61 members. The homepage for the Knesset website even agrees that “Israel has no constitution.”

In contrast, deference for the Constitution has been one of the founding bedrocks of America’s political culture and laws. The US constitution is also quite difficult to change since amendments require either the support of a ⅔ majority in both houses of Congress or the passage of ⅔ of all state legislatures. Even if a proposed amendment would manage to get to this level of support, it would still need to be ratified by ¾ of the state legislatures.

The role and rules for the Supreme Court in the US and Israel are also quite different. The current status quo in Israel gives Israel’s judiciary far more power and leverage to nullify legislation arbitrarily. This stands in contrast to the US where its judicial branch shares power with the executive and legislative branches much more equitably. The 9 justices of the Supreme Court of the United States (SCOTUS) are nominated by the President and then approved by a majority of senators. The US constitution gives the executive branch a level of control over judicial appointments that makes Israel's judicial selection process look tame by comparison. SCOTUS judges must also explain how their rulings uphold the Constitution, which in theory at least limits the level of space for judges to make arbitrary rulings created from a place of political bias. This is a far more stringent judicial standard relative to Israel’s Supreme Court, where judges have used their own “reasonability” standards, to nullify Knesset legislation.

The proposed changes to the role of Israel's Supreme Court would alter the balance of the nine member committee that appoints its 15 judges. Currently, the Supreme Court’s committee is composed of 3 Supreme Court Judges, 2 members of the Israel Bar Association and 4 members of the Knesset (2 Ministers and 2 regular MK’s). The current bill would replace the 2 members of the Israel Bar Association with 2 additional Knesset Members, giving the Knesset a 6-3 majority in selecting justices. It would also remove the Supreme Court’s power to prevent the passage of Knesset legislation, including its ability to prohibit Knesset bills on the grounds of “reasonability”. The “reasonability” charge was used this past January, to disqualify Aryeh Deri from serving as either the Minister of Interior or Health, on grounds that it was “highly unreasonable” to allow him to serve as a minister. The judicial ministry also appoints mandatory advisors in each government ministry that are able to prevent the implementation of legislation on legal grounds. This effectively gives a small number of advisors an inappropriate level of power to prohibit legislation. The judicial reforms would overcome this problem by allowing government ministers to appoint their own legal advisors.

Looming in the background of the proposed changes to the role of Israel’s judiciary is the question of Netanyahu’s legal immunity and whether the courts would or should be able to remove him from office. Israel’s longest serving Prime Minister has long been the bane of the left, both in Israel and the US. At home, Netanyahu's 15 plus years of leadership have testified to his remarkable political resilience and superior resume in comparison to his political opponents. The approximately 11 year period between March of 2009- May 2020, marked the longest duration of time that Netanyahu served (without being replaced) as PM. It also set a record in Israeli history for the longest time that any person held continuous control of the Prime Minister's Office.

This fact is even more remarkable when viewed in the historical context of Israeli politics. For decades, Israel’s left-wing had dominated Israel’s political arena and government institutions. It only finally lost its monopoly on power in 1977 when Menachem Begin was elected Prime Minister. Aside from a brief two year stint when Shimon Peres served as premier, the right governed Israel until Yitzhak Rabin was elected Prime Minister in 1992. Netanyahu’s emergence in the late 90’s as a rising political star coincided with a major shift for Israel towards the right in the last half decade. The Times of Israel reported on an analysis from the Israel Democracy institute, which found 62% of Israelis self-identified as right-wing, compared to only 46% in 2019.

However, Netanyahu's consistent dominance of Israeli politics had the adverse effect of producing a backlash and negative consequences that are still being seen today. Many key political figures that had once worked for or with him in the past, now refused to even consider cooperating with him and began to speak of working together at all costs to replace him. In 2021 an anti-Netanyahu alliance that included Avigdor Liberman, Naftali Bennet, Gideon Sa’ar, Benny Gantz and Yair Lapid managed to form a governing coalition. They managed to oust Netanyahu from power despite his Likud party winning the most seats in the last election. The tenure of the Bennet-Lapid-led government was short-lived as it was brought down after a wave of defections from coalition MKs. This forced Bennet to hand over power to Lapid and announce a new election yet again.

Netanyahu has also had to face a spate of criminal accusations designed to besmirch his reputation and remove him from Israel’s political scene for good. His legal woes began in 2016 with Case 1000, an investigation that looked into accusations that he accepted gifts of cigars and champagne from billionaire Arnon Milchan as a quid pro quo for Netanyahu pressuring the Finance Ministry to undertake measures that were favorable to Mr. Milchan. Case 2000 and 4000 (Netanyahu was cleared of charges for Case 3000) feature accusations that Netanyahu used his political influence to assist Yediot Ahronot (an Israeli newspaper) and Bezek (the corporation that owns the newsite Walla), in exchange for both news sites agreeing to represent Netanyahu more favorably. Despite the impending ongoing cases against him and the point-blank refusal of many Israeli politicians to enter into any agreement with Netanyahu, to the horror of progressives, Israelis decided to provide him with a governing mandate of 64 seats in the Knesset in the 2022 November elections.

While there are some critics of the bill that are legitimately concerned that its passage would weaken legal protections against abuse of power, others are protesting because they want to see Netanyahu removed from power despite the fact that he was democratically elected. After more than a decade and a half of Netanyahu’s leadership, Israel’s left-wing has run out of patience for negotiation, compromise, or reason, and will use any means necessary to remove and block Netanyahu’s agenda. They will do so all the while hypocritically insisting that they are representing democracy. However, it is the legislative branch (the Knesset), not the judicial, where power is determined through a democratic process. Increasing the Knesset’s ability to craft and implement legislation makes the Israeli government more reflective of the will of Israel’s voters and not less.

Despite outraged protesters dramatically wringing their hands and warning of the end of Israel as a democracy, the fact is that Netanyahu has lost elections before without any serious issues over a peaceful transfer of power. Israel’s democratic nature is threatened by providing the judiciary branch a blank cheque to block the creation and implementation of public policy for partisan motivations. It is also threatened when large segments of the population adopt an uncompromising stance and refuse to abide by or accept the outcome of an election. While these same protestors complain that Netanyahu places his own interests before the nation's, they are willing to risk the security and prosperity of Israel’s future to oust him. These actions create the kind of economic pressure on Israel that might make the founders of BDS proud. If those opposing the reforms genuinely want to protect Israel’s security and future as a Jewish and democratic state, they must also be willing to honor the consequences that democracy brings or Israel will edge ever closer to a point of no return.