In recent weeks, the signature policy priority of Israeli prime minister Benjamin Netanyahu and his governing coalition has prompted mass protests around the country — in Tel Aviv, smaller cities and towns, and Jerusalem, where this week some 100,000 came out for a rally. The government’s proposed reform of the judiciary would limit the Israeli supreme court’s power to exercise judicial review and give the government greater control over judicial appointments. Israelis across the political spectrum and from all sectors have expressed concerns about the impact that the proposed judicial reforms would have on Israel’s robust democracy.
To gain a deeper perspective on the current situation, I spoke recently with two Council on Foreign Relations fellows. Elliott Abrams, a frequent NR contributor, held a number of top foreign-policy positions in the Reagan, George W. Bush, and Trump administrations. Martin Indyk served as U.S. ambassador to Israel under Clinton and as a Middle East envoy under Obama.
That some judicial reform may be advisable is not particularly controversial, but it’s the extent of the current proposals that has set off alarms. Abrams, who has counseled against hysteria in reactions to the current government, both its personalities and policies, agrees that Israel, which has no written constitution, needs a judicial mechanism to check the government’s majoritarian impulses. “The way in which the [supreme] court took it upon itself to answer to every question left open-ended by Israel’s founders is incorrect,” he said, “but as conservatives, we should not take the position that unalloyed majoritarianism is the correct answer either.”
Abrams counters the notion that democracy is under threat: “Some of these judicial reform proposals may not be perfect, but their problem isn’t that they’re undemocratic. They’re very democratic. As Alan Dershowitz noted, in one respect, the reforms make the country too democratic by giving the Knesset total control of the law.”
Critics of the reform plans should present compromise proposals, he said, rather than going to extremes in forecasting the end of democracy. “What they’re doing now is ineffective and wildly irresponsible. The sky is not falling. The government may make decisions we disagree with, but the idea that the Israel we knew is gone is preposterous. And many of the hyperbolic things that have been said are a disgrace because they damage Israel’s standing in the world.”
Indyk, a critic of some of the judicial-reform proposals, had this to say: “I think there is room for judicial reforms. But the independence of the judiciary needs to be maintained. And many of the proposals on the table right now go way too far in removing the checks and balances essential for healthy governance. But I’m not that worried about Israel’s democracy per se. It’s a vibrant democracy, albeit perhaps too boisterous at times.”
Indyk’s greatest concern lies in the international response to other policies the government might pursue if the judicial-reform plan passes the Knesset. As he sees it, “Israel’s strongest argument” against criticisms of its West Bank policies “is an independent judiciary.”
As for what comes next, the first piece of judicial-reform legislation has proceeded through a Knesset committee on law — under vehement protest by opposition members — and now moves on for general debate. If anything has been made abundantly clear in recent weeks in Israel, it’s that Israelis opposed to the reforms, politicians and ordinary citizens alike, are vigorously exercising their freedom to speak out.