Reporters Should Ask Biden and Harris Why Their Plan Shouldn’t Be Treated Like Netanyahu’s

My column today contrasts the proposal by Joe Biden and Kamala Harris to fundamentally restructure the U.S. Supreme Court in order to change its decisions to the 2023 effort by Benjamin Netanyahu in Israel. Of course, that effort was much more legitimate, for three reasons: because Israel has no written constitution (and thus no basis for the justices to invoke a law higher than that of the Knesset), because Israel’s justices aren’t appointed by politically accountable actors (this being Netanyahu’s chief grievance), and because Israel has operated under a judicial-review system only since 1995.

Consider how the Biden administration, at the time, took sides against Netanyahu and painted him as an authoritarian menace to democracy for proposing to change his country’s Supreme Court:

The Biden administration, which never misses an opportunity to attack judicial review by independent courts in the United States or treat foreign policy as a proxy war against domestic enemies, has taken sides against the judicial overhaul. Secretary of State Antony Blinken lectured Netanyahu in January about the importance of consensus and “core democratic principles and institutions, including respect for human rights, the equal administration of justice for all, the equal rights of minority groups, the rule of law, free press, [and] a robust civil society.” (This, to a man who has been a party leader in a vibrant democracy for three decades and is serving his third term as an elected head of state.) Blinken’s words were understood in the Israeli press as “a reprimand,” never mind that they came from the administration of a man who has regularly been reprimanded by our own Supreme Court for seizing the personal right to make laws and spend money without Congress’ approval.

In mid February, President Biden himself delivered a statement on the matter through authorized spokesman Tom Friedman of the New York Times: “The genius of American democracy and Israeli democracy is that they are both built on strong institutions, on checks and balances, on an independent judiciary. Building consensus for fundamental changes is really important to ensure that the people buy into them so they can be sustained.”

The careful reader will notice that Biden, a longtime advocate of judicial minting of new unenumerated rights, makes no mention of written constitutions as an element of those “checks and balances.” As Friedman noted, “This is the first time I can recall a U.S. president has ever weighed in on an internal Israeli debate about the very character of the country’s democracy,” and Biden’s words appeared to support critics in Israel who “would move Israel into the camp of countries that have been drifting away from democracy, like Turkey, Hungary and Poland. . . . I also suspect that Biden taking a stand on this issue in this measured but unmistakable fashion will encourage other Western democratic leaders, business leaders and U.S. senators and representatives to do so, too, which will also energize the opposition.”

The Israeli crisis spilled into the streets in mid February, as left-wing street protesters, joined by members of Israel’s professional upper-middle class, began paralyzing the country. As Friedman observed, it was not accidental that Biden timed his statement to coincide with the commencement of the protests and encourage them with outside support.

The press should demand that Biden, Harris, and Democratic candidates for the Senate and House explain why this is any different. For that matter, somebody should ask Netanyahu whether he thinks this means that America has been drifting away from democracy.