Whatever one thinks of the judicial reforms that Israeli Prime Minister
coalition has proposed, it’s hard not to conclude that he is proceeding in a reckless and destructive manner. He has divided his country and driven many of its citizens to protest in the streets. He has lost the confidence of Israel’s economic leaders and has led many members of the country’s defense forces to question his government’s orders. Members of his own Likud Party are signaling that he is going too far, too fast.
Mr. Netanyahu also has driven a wedge between Israel and a growing majority of American Jews. The Jewish Federation of North America sent him a letter last month opposing major portions of his proposed legislation and urging compromise. The American Israel Public Affairs Committee, which has given Mr. Netanyahu a hero’s welcome in the past, has fallen silent.
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“Great innovations should not be forced on a slender majority,”
advised. It isn’t even clear that Israel’s prime minister entered office with majority support. Yes, his coalition controls 64 seats in the 120-seat Knesset, Israel’s parliament, but it represents only 48.4% of the votes cast in last year’s election, while the opposition parties received slightly more—48.9%.
Nor do his sweeping judicial changes reflect the will of the people. A survey conducted by the Israel Democracy Institute found that a majority of voters—including substantial minorities of coalition supporters—oppose each of the government’s main judicial proposals. Sixty-three percent of Israelis favor the current method of selecting judges rather than the government’s proposed political takeover of the process. According to the IDI, a majority of Israelis fear a range of negative consequences, including “damage to their personal savings, restrictions on freedom of expression, exposing IDF soldiers to international war crimes charges, [and] politicization of the civil service.” Mr. Netanyahu, who as finance minister helped create Israel’s dynamic economy, has assured his people that his judicial plan will not harm the economy, but only 35% believe him.
Tellingly, 70% of Israelis—including 60% of the coalition’s own voters—favor negotiations between the government and the opposition to find common ground. In a series of speeches, President
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has done his best to jump-start such a process. After consulting leaders across the political spectrum, he proposed a framework for compromise, which key opposition leaders accepted as a basis for negotiations. But Mr. Netanyahu turned it down flatly, reportedly because his hard-line justice minister,
threatened to resign and bring down the coalition if the prime minister opened the door to talks.
The stakes of this conflict are very high. Israel’s declaration of independence, which established the state, promises to ensure “complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex” and to guarantee “freedom of religion, conscience, language, education, and culture.”
These commitments distinguish a liberal democracy from pure majoritarianism, which can run roughshod over the rights of individuals and minorities. But they are not self-executing. America’s founders understood that without institutional support, verbal guarantees—whether the separation of powers or a bill of rights—would be, in the words of
mere “parchment barriers.”
As a parliamentary democracy with a one-chamber legislature, Israel has fewer checks and balances than the U.S., and Israel’s Supreme Court emerged as the principal barrier against the tyranny of the majority. Over time, however, the court expanded its jurisdiction and asserted a broad right of judicial review, which its critics saw as a power grab. And as Israel’s electorate came to reflect the increasing influence of religious Jews and immigrants from the Middle East and North Africa, the Supreme Court came to be seen as a bastion of secular European elites, who use the institution to enforce their views on Israeli society and politics.
With the announcement of the government’s reform proposals, these longstanding tensions have exploded into one of the most divisive confrontations in Israel’s history. The current moment is the coalition’s best chance to redress what it sees as decades of judicial usurpation. For the opposition, this effort represents a mortal threat to its version of a just and inclusive society governed by Israel’s founding ideals. The opposition believes it could lose everything if its resistance to these reforms fails.
While the government’s proposals are deeply flawed, the status quo is far from perfect. The court’s jurisdiction has expanded into what are clearly political issues, the requirements for bringing a case before the court are too permissive, and key criteria that the court uses to settle cases are subjective at best. There is room for an honorable compromise.
The government has recently offered to pause some parts of its legislation while proceeding with its plan to take over the judicial selection process. This is a start, but it’s not enough. Mr. Netanyahu should freeze the entire legislative process to make space for negotiations, which are the only alternative to unending discord.
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