Want to Support Israel’s Democracy? Support People Who Like Democracy

I was happy to see a letter published in The Times of Israel a few weeks ago from respected Israeli authors and thinkers Yossi Klein Halevi, Daniel Gordis, and Matti Friedman. All three names are giants in Jewish and Zionist circles, and their beseeching of American Jews to join the Israeli protest movement, to oppose Netanyahu and his government of extremists, was as necessary as it was persuasive. They powerfully declare: “Diaspora support for Israel has traditionally taken the form of support for its government. But now the greatest threat facing Israel is its government. Jews in the Diaspora can no longer support Israel without asking which Israel they are supporting.”  

In a previous column, I expressed my support for American Jews becoming more vocal and active in the protest movement, so I will not repeat all the reasons why I agree with Halevi, Gordis, and Friedman in this piece. Instead, I will focus on the rebuttal from Jonathan Tobin, editor-in-chief of Jewish News Syndicate, entitled “Want to Support Israel’s Democracy? Then Respect Democratic Elections.”  

Before I even glanced at Tobin’s piece, I knew its thesis. It has become a favorite talking point of not only the conservative, religious-aligned right, but also Zionist centrists wading into arguments over judicial reform to assert repeatedly that because one side won Israel’s last election, because one side clinched 64 mandates in the Knesset, then anything this government chooses to do is ipso-facto democratic, and that democratically-structured societies cannot possibly lead themselves democratically into illiberal regimes. The Jewish people, of all people, should simply know better. I will therefore counterargue Tobin’s counterargument in this column, and explain what I have termed “Trump Zionism,” which lies beneath the surface of many pro-reform arguments. 

First, in any conversation about judicial reform, it is negligent to not center the people who are pushing for its enactment with the most vigor. Tobin states in his piece that judicial reform was “a widely understood campaign plank of the victorious coalition” implying that Netanyahu and Aryeh Deri campaigned for the overturning of the reasonableness clause with equal strength compared to Bezalel Smotrich and Simcha Rothman of the Religious Zionist list. This is simply not accurate.  

While it is of course true that the mainstream right, including Netanyahu, have called for amorphous reforms to the judiciary before the election, Eliav Breuer in the Jerusalem Post notes that “The Religious Zionist Party was the only coalition party to present a clear plan for the legal system, called ‘Law and Justice,’ in a press conference on October 15, two weeks before the election. The plan included all of the current plan’s provisions, and many more – including the cancellation of the ‘breach of trust’ crime, for which Netanyahu is currently standing trial.” The Likud made a point to not endorse these plans but also to not oppose them. It was too politically toxic to endorse such a clear kneecapping of the judiciary, considering that just after the reforms were officially announced, when the coalition had been formed, only 53% of Likud voters reported to support them in their entirety, with 27%, a significant minority, reporting that they “were concerned for Israeli democracy.” As Likud is by far the largest party in the government, campaigning on reform was accurately deemed too much of a risk.  

This is further proven by the few and far between pro-reform protests the country has seen compared to the anti-reform demonstrations. The strongest showings were in Jerusalem at the end of April, and in Tel Aviv at the end of July. For both rallies, large numbers of participants were bussed in from settlements in the West Bank, Religious Zionist strongholds. It bears repeating that expressions of support for the judicial overhaul cannot be salvaged from sovereign Israel, or even from the Likud. Rather, enthusiasm must be outsourced from afar, the very same thing the right has accused of the left.  

Regardless of which parties in the coalition made more of a point to support reform while campaigning, it matters not to Tobin, who repeatedly states how Netanyahu’s government was elected democratically, in a free and fair election that is unique to Israel in the region, and therefore the government reserves the right to pursue whatever policy it chooses. He declares: “Benjamin Netanyahu’s coalition won a clear majority in last November’s election to the Knesset.” First things first — how true is this statement? Out of all voters in the 2022 election, approximately 2.3 million people voted for the parties that currently comprise the coalition, while 2.5 million people did not (this includes parties that did not cross the Knesset’s electoral threshold.) As a percentage, this means a mere 48.4% of the country voted for the coalition, which is not, as Tobin states, “a clear majority.”  

Nevertheless, because of quirks in Israel’s political structure, the coalition received 64 mandates in the Knesset by way of established rules. Despite this, the broader right’s assertion that the decisions of a democratically elected government are automatically democratic by representing the will of the majority, which — as proven — is hardly a majority at all, defies most modern understanding of political science. It also ignores an extensive history of democratically elected leaders dismantling their nation’s liberal order in attempt to bend power toward illiberal ideologues. Considering the people pushing hardest for judicial reform, there is every reason to believe Israel is currently barreling down this track.

Benjamin Netanyahu’s government is composed of men (and a few women) who do not like democracy. Itamar Ben-Gvir does not mind espousing his authoritarian outlook to the public. Bezalel Smotrich advocates for full sovereignty over Palestinian communities in the West Bank but opposes granting their residents the right to vote, and United Torah Judaism and Shas explicitly favor policies that would segregate men from women in the public square and would further infringe upon LGBT rights.

Unreasonable people took away the reasonableness clause because they plan to do unreasonable things. You cannot separate judicial reform from the ideas of those demanding its enactment.

To his credit, Tobin acknowledges these forces. He concedes that the structure of the Supreme Court is not sexy enough to get hundreds of thousands of Israelis to take to the streets for 34 straight weeks. He acknowledges that the unrest in Israel is fundamentally a clash of ideology, a duel over whether the state will remain democratic, and yet curiously fails to understand that unreasonable people took away the reasonableness clause because they plan to do unreasonable things. You cannot separate judicial reform from the ideas of those demanding its enactment. 

Not only is this crucial relationship not acknowledged, but Tobin goes on to argue that rather than the people who have made their disdain for democracy transparent, it is the protest movement that is fundamentally undemocratic, because it very clearly seeks to elect a new government (surprise: an opposition doesn’t like the government!) 

To bolster this contention, Tobin points to the period in the 1980s and ‘90s when Supreme Court Chief Justice Aharon Barak established Israel’s system of Basic Laws, which from then on would be considered Israel’s quasi-constitution. Tobin calls this “a revolutionary power grab,” an attempt by Israel’s left to seize and consolidate control from the right who had begun to repeatedly win national elections. Therefore, the protest movement is only hiding behind the word “democracy,” and is really marching to secure a majority Ashkenazi, left-wing Supreme Court that renders Israel more authoritarian, and the individual Israeli with less representation.  

The Basic Laws specified individual rights for Israeli citizens and the relationship between the branches of government, just like foundational staples of liberal democracies all over the world. Most importantly, the court could now practice judicial review over Knesset decisions that contradicted Basic Laws; for example The Basic Law of Human Dignity and Liberty, which without enforcement is hardly a law at all, and when a state exercises authority over an occupied territory, is essential to avoid tribunals in the International Criminal Court.  

Tobin is correct when he says that this move was motivated (if only in part) by a political shakeup in Israel, the incipient dominance of the right-wing that began with Menachem Begin and Likud’s victory over HaAvodah in 1977. Yet partisan leanings do not render a court’s decisions undemocratic (conservatives have little trouble understanding this when conservative justices rule in their favor). For example, as Chief Justice of the US Supreme Court from 1953 to 1969, Earl Warren oversaw the eradication of racial segregation in schools and in marriage, enshrined rights and protections for criminal defendants, and made it so public schools could not force their students to study the Bible.

Is it really the structural aspects of Israel’s Supreme Court that upsets Israel’s right-wing, or is it that the court is entrusted with the power to review laws based on Human Dignity and Liberty? I would argue it is the latter, not the former.

The American right ceaselessly vilified the Warren court. They protested in the streets, campaigned on ending the court’s “corruption,” and hurled accusations of judicial activism, tyranny of unelected bodies, repression of the elites, and of communist conspiracy (not unlike Caroline Glick of Jewish News Syndicate who last week accused the protest movement of being a front for Stalinism.) Yet despite the boiling culture war that ravaged America in the 1960s, the Warren court oversaw the objective progress to a more liberal government and society: No respected figures in American politics today advocate for racial segregation. With this in mind, is it really the structural aspects of Israel’s Supreme Court that upsets Israel’s right-wing, or is it that the court is entrusted with the power to review laws based on Human Dignity and Liberty? I would argue it is the latter, not the former.  

Regardless, the right has precisely crafted their arguments to appear opposed to the Supreme Court’s power on political principle, and not the implications of this power on the democratic future of Israel. A useful method of understanding this maneuver is with the term “Trump Zionism.”  

At the beginning of last week’s Republican presidental primary debate, Fox News played the music video of a song that has reached #1 in the charts across America, “The Rich Men North of Richmond.” The song is a composition of populist grievance against politicians and the elite, whom singer Oliver Anthony laments have taxed the working class to death and have attempted to control the minds of small-town folk like him. Regardless of Anthony specifying this week that the song has no partisan angle, Republicans seized upon the song, designating it as a conservative anthem against the New York liberals (carpetbaggers, anyone?) who wish to swindle and strip freedom away from their blue-collar compatriots. This, I would argue, is precisely the strategy of the Israeli right in the debate over judicial reform.

Overhauling Israel’s judiciary does not promise to lower taxes, decrease the cost of living, or at all open new jobs to low-income areas. In fact, there is a litany of evidence to suggest the opposite. 

Overhauling Israel’s judiciary does not promise to lower taxes, decrease the cost of living, or at all open new jobs to low-income areas. In fact, there is a litany of evidence to suggest the opposite. Instead, the legislation is designed to remove the guardrails on convicted criminals serving as Ministers in the Knesset, bolster the Haredi political program to ensure continued welfare subsidies and army exemption, and give the green light on continued settlement of the West Bank (paid for with taxpayer dollars.) These proposals are wildly unpopular with most members of even Israel’s conservative working class, and therefore, in order to succeed, the argument against the court must be constructed on lines of ethnic identity and political ideology.  

Tobin writes, “The truth (about judicial reform) is that it’s primarily cultural. It pits Israel’s Ashkenazi secular liberal elites against Mizrachi, nationalist and religious Jews who voted Netanyahu’s coalition into office last November … The class divide — as well as the one between Ashkenazi and Mizrachi, secular and religious — is clearly on display. That the protesters are genuinely anguished about living in a country where the people that they view as ‘deplorable’ will no longer acquiesce to the rule of their betters is as obvious as it is incompatible with any real notion of respect for democracy.” 

The right must use the boogeyman of the Ashkenazi elite who resent Mizrahim to distract from their codified goals. Like Likud candidates who refused to specifically endorse any plans for judicial overhaul before the election, the government now knows that they must mislead and misconstrue. Unless the face of the Supreme Court is George Soros and the global “woke left,” the enthusiasm simply does not exist for giving the Knesset the power to override the court with a simple majority of 61. This is a shameful and cynical program that promises to divide the Israeli public much deeper than any protest movement in reaction to it.  

Tobin concludes his piece by disagreeing sharply with Halevi, Friedman, and Gordis. He writes, “The people of Israel will not benefit from American participation in a culture war rooted in class, ideology, and religion that the Jewish state must ultimately resolve on its own. Those Americans who want to show support for Israel’s democracy should demonstrate it by respecting the outcome of its elections …” 

In reality, American Jews are all too familiar with a movement that seeks to derail the norms of liberal democracy, and that uses identitarian grievance politics to distract from the continued hammering of the working class and the advancement of radical ideas. Seventy-to-75% of Jews voted for Hillary Clinton and Joe Biden in a clear rejection of this style of governance. If the Jewish state is indeed part of our identity, part of our culture and self-respect as Jews, then it is indeed incumbent upon us to recognize that such poison does not have borders. We have a stake in the future of Israel and Zionism, and it is in both Israeli and American Jews’ best interest for both to remain democratic.

Blake Flayton is the New Media Director and columnist for the Jewish Journal.