Focus on Israel’s Current Situation, Disregard President Biden

President Biden‍ Urges ⁤Israeli Prime Minister to Halt Divisive Judicial Overhaul Bill

President Joe Biden has reportedly ⁢asked Israeli Prime Minister Benjamin Netanyahu to stop pushing through a “divisive” judicial overhaul bill amid protests.

This is the same Biden, incidentally,‌ who crammed through a massive, highly “divisive,” generational spending bill with ⁤zero votes from the opposition; the same guy who regularly rules ​by unconstitutional‌ executive diktats; and the same guy who has done more to delegitimize the Supreme Court than any president ​in modern⁢ history.⁣ Not exactly the moral high ‍ground.

The Concern Over Judicial Limitations

In any event, the president is‍ concerned. As ​is The New York Times, which reports, “Israel’s Parliament passed a deeply contentious law ‍limiting the Supreme Court’s ability to‌ judicial reform.”>overturn decisions made‍ by government ministers.” What the Times means is that there is a new law ⁣limiting the judiciary’s ability to unilaterally declare legislation “unconstitutional” without using any legal justification whatsoever.

Because,‌ as it stands, ‍Israel has a strong anti-democratic ‍system overseen by a⁤ high court that is probably the most powerful judiciary in the free world. Netanyahu’s judicial‌ reforms, only a​ small piece has‌ passed, would bring Israel back all​ the‌ way to ‍1995, when “judiciary revolution” imbued the court with supreme power over legislation.‌ The alleged authoritarian “backsliding” by Israel’s “far-right” government ​— ⁣as if there is any other kind — would likely create a far more “democratic” ⁤system.

The judiciary primacy might work if the Israeli court’s decisions were grounded in​ some kind of statutory authority, traditional legal⁣ framework, or even ‌existing regulation and law.‌ But there is no Israeli constitution. ​The court’s decisions are often arbitrary, ⁤politically expedient, constantly evolving, and sometimes contradictory. The court regularly blocks laws​ passed⁢ by center-right governments⁣ simply because judges claim policy is unreasonable.

The Need for Judicial Reform

Why ⁢only center-right‌ governments? Because the ​entrenched judges (with their allies in‌ the Israeli bar)⁢ appoint their own successors in ⁤perpetuity. There is no accountability to either the popular⁢ will or a constitutional tradition. Imagine‌ the American left’s outlook if the Supreme Court’s originalists could simply tap their own replacements⁢ without any input ⁣from senators or the president. “Only in Israel do ​judges confer the power of abstract review on themselves, without benefit of​ a constitutional or legislative provision,” ⁢Richard Posner ‌once described ‌ the nation’s ⁤system. “One is reminded of⁣ Napoleon’s taking the crown⁤ out of the pope’s hands and putting it‌ on his‌ own ‍head.”

The ‌system ‍is so insane that not‍ only can the court lord over ​the legislative ​branch without explanation, but it⁣ can remove ⁣ministers and ​elected‌ officials ‌at will. The attorney‍ general is empowered to bar officials ⁣— even ⁣the prime‍ minister —⁤ from participating in national debates. This is not, ‍by any real ‌standard, “democratic” governance. It⁣ is illiberal.

Perhaps there is no good⁣ way to ⁢balance what is ​effectively ⁤two‍ branches of the Israeli‌ government. It’s a complicated⁤ issue. Reforms are no panacea. Some aspects make more sense than others. But judicial reform is hardly a new idea, and ⁢reforms⁤ are not being “rushed.” They have been debated ⁢within Israeli politics for decades, with numerous moderate legal ‍voices proposing changes ⁣over that time. ‍In many ‌ways, ⁢the freak-out reminds me of the American left’s alarmism over tax cuts and⁤ net neutrality. It ‍is​ largely ⁢a political effort to undermine‌ Netanyahu.

The Associated Press, however, stresses that the protests in Israel are a “grassroots” effort as if this imbues a mob with a moral ​high ground​ or the authority to dictate government policy. In truth, many of⁣ the marches — and threats ⁣to ‍shut down ‌Israeli society — are organized by Israel’s biggest and most powerful unions ‍and egged on by foreigners. ⁢If ⁤the prime minister lets these protestors blackmail him, he might ⁤as well resign right ‌now. It’s going ⁣to incentivize anarchy.

As of now, ‍protestors from⁤ both ‍sides are out‍ on the ‍streets. And‌ so far, they haven’t engaged ⁢in⁣ the⁤ defenestration of their opponents or any violence. The debate is‍ an illustration of ‍a ‍“democracy” working, not one sliding into tyranny.

Yet,‌ every time Israel⁣ has a contentious internal debate, concern-trolls like Tom Friedman emerge to lament the coming end⁤ of Israeli democracy. You will​ notice that according to the⁣ media, legislative ​proposals, domestic or foreign, are only “divisive”‍ and “deeply contentious” when conservatives support them. The reality is ‍that virtually everything ‌we do in politics ​is “divisive” and “deeply contentious.” That’s why politics exists. And in Israel, the time of day is a ⁣deeply contentious issue.

Moreover, for‍ the left, “democracy” can mean hyper-majoritarianism or judicial tyranny. Whatever works. Depends‍ on the day. What ⁤am I ‍saying? Democrats will argue that limiting judicial supremacy‍ in Israel is an attack on “democracy” while at the same time claiming SCOTUS is engaged⁤ in judicial⁢ supremacy for showing deference to the Constitution and handing back issues like abortion to voters. Calvinball all the way down.

Of course, the Israeli Supreme Court was packed with ​right-wingers instead of left-wingers, ‌American media, the Democratic Party, and the protestors would be on the reform⁢ side. None ‌of this ‍has‍ anything to do with governing principles or justice⁣ or norms or “democracy.” Like ‌those ‌ destroying the⁤ American judiciary at home, it’s about power.

The Israeli ‍right is also about power. I’m not naïve. ⁢But right now, the reforms they⁣ support are far better aligned with the ​norms of a functioning “democracy” than the ones in place. That’s something a person reading headlines in the American press might ⁤not know.