There is an old trial lawyer’s maxim that “if the law is against you, pound the facts. If the facts are against you, pound the law. If the law and the facts are against you, pound the table.” Consider the wave of protests in Israel against the proposed judicial reforms the equivalent of pounding the table. It would be a shame, an offense against democracy, and the humiliation of a right-wing government if it allows these protests to derail the proposals and delay the process. These protests are Israel’s equivalent of January 6 – except that I fear that the January 6 people at the American Capitol were a little more sincere in their beliefs.
First, the facts. The weakness of the protesters’ arguments is illustrated by their ever-shifting nature. Some just obsessively hate Binyamin Netanyahu and so must oppose anything he supports. The suggestion that any of these reforms will impact his interminable trials is absurd and far-fetched, and is an accusation that is incessantly repeated without a shred of evidence to support it. He’ll be able to have more influence over the composition of the Court years from now? His trial will still be going on? He’ll be able to pass legislation shielding him from liability – and not pay a political price for that? The answer in a democracy is more democracy, not less.
Second, the notion that the proposed reforms will impair Israel’s democracy is similarly ludicrous and is made by those who assume that asserting it monotonously is itself proof of its veracity. The obvious implication is that for the first 50 years of Israel’s existence it was not a democracy and only became one when 25 years ago Aharon Barak usurped the rights of the people and imposed a judicial fiefdom in which a dozen or so robed lawyers make decisions in every aspect of life – political, religious, financial, military – instead of the people’s elected representatives and its duly constituted coalition government. It sounds as ridiculous as it reads. It cannot be a “threat to democracy” if the goal is to restore Israel’s democracy to what it was before the Barak revolution. Government by a few oligarchs is the quintessence of democracy, not the rule of the people? Why have elections altogether if the people’s choices are frustrated in their ability to implement their platforms?
The obvious answer is that the will of the people is only obstructed when they elect a right-wing government that adheres to tradition, love of the people and land of Israel, and willing to take a strong hand against our enemies. When the people – very sporadically, reality reminds us – elect a left-wing government the Court turns a blind eye to its excesses and trampling of human rights.
Thus, third, the talk of civil war and the civil disobedience that is accompanying it and interfering with people’s rights should not be tolerated. Israel’s right-wing, not to mention the settlers themselves, endured an unforgivable trauma when 9500 Jews were expelled from their homes in gush Katif and northern Shomron. The High Court will intervene and halt an attempt to remove a fence illegally erected by Bedouin to seize more land – and ignored the expulsion of thousands of Jews from their homes? Spare us the crocodile tears, the faux outrage, and the placards decrying these reforms as grounds for civil war and a threat to democracy. If the right didn’t attempt to overthrow the democratic process during the expulsion from Gaza (even though that ignoble process was a corruption of democracy) the left should not be making threats about changes to the Court’s method of judicial appointment and the limits of the Court’s jurisdiction. This is not a civil war over slavery or national destiny; it is a threat of civil war from the people who – like on January 6 in DC – do not respect the results of a democratic election in which those who voted for the government were fully aware of the proposed reforms and voted accordingly.
Moreover, we should certainly contrast the treatment of today’s rioters and the protesters of the Gush Katif expulsion. The latter were told that their protests were a breach of democratic norms, thousands were arrested, and thousands more were kept away by the government artificially closing roads and access points to them. The judicial reforms protesters, by contrast, are coddled, allowed to block intersections at will, upset people’s schedules and lives, and are celebrated in the media. Anyone who wants to know why there is such distrust on the right of Israel’s Supreme Court and mainstream media should look no further than the disparate treatment between the two groups. Aharon Barak had no sympathy for the plight of the settlers in Gush Katif and so stripped them of their human rights, permittted their expulsion, the destruction of their homes, the extinction of their businesses and even the uprooting of their dead from their graves. That is not equality before the law but simple power politics, and cruel and mean-spirited at that. Equality before the law means applying laws of civil disobedience consistently across the political spectrum.
Fourth, the threats of grievous harm to the economy are objectively preposterous – unless they are promoted by these suicidal activists. It recalls the statement made by a historian, in another context, that the demonstrators are trying to induce “a real life disaster in order to thwart a mythical catastrophe.” If anything, investors seek a business climate that is stable and in which contracts are respected – not one in which a Court can unilaterally impose its reading of a contract on the parties, against their clear meaning and intent, simply because it wants to do so. The reforms will strengthen the business climate unless the protesters, in their madness and anger against their loss of power in a democracy, sabotage their own businesses and Israel’s prosperity. Sadly, in the Middle East, suicidal misbehavior is not unknown. And, if in the short term, there is a brief economic downturn? We survived Pharaoh, and can survive this as well, especially in a world where Israel’s know-how is desired and benefits millions of people.
Fifth, the exaggerated and risible laments have purposely triggered politicians across the world to weigh in on Israel’s domestic concerns, quite an embarrassing display. It has even induced President Joe Biden to demand that Israel’s Parliament act only with a national consensus. Perhaps he forgot – his words are usually written by others – that in the United States he passed his signature legislation without a consensus, relying just on a narrow Democratic majority. Hmmm, yes, he must have forgotten that before he started to lecture us about our legislation.
The best thing the government can do – besides arresting and incarcerating those who block roads and highways – is pass the legislation quickly, and two weeks afterward people will have moved on to something else. Negotiations on proposed legislation takes place in committee; those who choose to boycott, scream, obstruct and intimidate but not offer any cogent proposals forfeit the right to have their voices heard where it counts – in the Knesset, not the street. (The fact that so many protest leaders – including the politicians have called for similar reforms in the past only underscores the hypocrisy of the left and the political farce it is orchestrating.)
Nothing will change in Israel, and the people’s inclinations and policy preferences will continue to be thwarted, unless the Court’s jurisdiction is limited and the override clause is passed. Without that, any legislation including a change in the composition of the judicial selection committee will be overturned by the Court which perceives itself, wrongly, as the ultimate power in society. Similarly, the Knesset must pass a law permitting override of Supreme Court decisions that repudiate its laws. What is the threshold? It is a good discussion, but is a civil war justified if the threshold is 64 and not 67? That too is absurd. Of course, 64 seems too convenient (the coalition’s current Knesset majority), but if the threshold is 65 or 67, then a Supreme Court majority of 13 or 14 justices (not 12) should be mandated if the Court wishes to invalidate a law passed by the Knesset. After all, if a Knesset law is so egregious, the politicians will pay a steep price at the next elections, of which in Israel there is no shortage. And judges, despite their arrogant overreach, never pay a political price for anything. Those who are unaccountable to the public should be wary of imposing their views on the public, not eagerly and tendentiously seek such opportunities.
And obviously, there should no such individual in a civil society like Israel’s Attorney General who unilaterally has the right to order the government to do something or not do something, invalidate legislation or demand legislation. Why vote for a government if power is so concentrated in one person?
It is difficult to conceive of any Israeli who voted for the current government joining or supporting the protests or even having sympathy for them. As such, what we see before us are the sour grapes of sore losers who would rather destroy Israel as a Jewish state and a prosperous democracy than to see a right-wing government succeed in the mission for which it was elected. They have no respect for the people’s vote; why then should they respect the time, lives and livelihoods of their fellow citizens? I hope the small number of protesters – a small mob in comparison to the population that voted for the government – has the decency to stop pounding the table, that the government has the strength and courage to pass the reforms and quickly, and we can return to facing and overcoming the real challenges that threaten our peace, prosperity, unity and holiness.
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