The Mess in Israel

by John Podhoretz, COMMENTARY

In November 2022, for the first time in a nearly a decade, an election in Israel had a decisive outcome. The government that emerged from that election two months later was instantly unacceptable to other Israelis, who have since taken to the streets.

Over the past two months, the question I have been asked more than any other is: Can you explain what’s going on in Israel? The answer is not difficult: The right is seeking to enact an activist agenda, and that agenda angers, alarms, and/or terrifies everybody who didn’t vote for the parties of the right.

Those parties, together with the Likud party under the leadership of Benjamin Netanyahu, won 64 seats in the 120-seat Knesset. Thus, the results constituted a winning margin for the Netanyahu bloc of about 3 percent, roughly the same spread that separated George W. Bush from John Kerry in 2004.

This was the sixth national election in Israel since 2013, a year in which Netanyahu’s coalition scored 68 seats. That seven-seat margin appears to be a colossal majority by today’s standards, but that seemingly strong government lasted only 18 months. Netanyahu found it necessary to call early elections in 2015, and they went badly for him; his new coalition hit only the bare 61-seat minimum. From 2015 to 2019, Bibi hung on, defying electoral gravity by deploying dazzling political skills that kept his own always restive right flank from bringing his government down while concentrating his attention on foreign-policy matters that were decidedly nonideological.

Then an inconclusive election in 2019 ushered in a period of staggering political and partisan stagnation during which four more elections were held. Netanyahu, who led a caretaker government, spent the years between 2019 and 2021 holding on to power like Harold Lloyd clinging to the minute hand of the skyscraper clock above Los Angeles. In 2021, a coalition united solely in its desire to unseat Netanyahu managed to glom itself together in slapdash fashion for a year or so, until it could no longer survive its internal contradictions. And finally, when the dust settled in the early morning of November 2, 2022, the anti-Bibi forces had fallen short and Netanyahu had won the day.

It’s easy to see how an election in which the “Bibi bloc” not only prevailed but did so by three seats might feel to the victors like an overwhelming national endorsement of their goals and aims. That view was only strengthened by the petty weakness of some pretty blatant sore-loser arguments. The most ludicrous was that Bibi had received only 30,000 more votes in aggregate than the anti-Bibi bloc. Um, no. Hundreds of thousands of ballots were cast for two major Arab parties, Balad and Hadash-Ta’al, and those votes cannot be assigned to the anti-Bibi team because those parties would never agree to be part of any government (nor could any government have them). They cannot be assigned to the anti-Bibi camp because they are fundamentally in the anti-Israel camp.

The simple fact was that the domestic political stalemate inside Israel had finally come to an end. The right won. And there were a lot of pent-up policy desires, partisan and in-group interests, and just the simple desire to stick it to the other team that exploded outward during the negotiations over the new government’s composition. As soon as the new team was sworn in, it hit the ground running.

Now, it is entirely normal for a winning government to come into office eager to implement the policies it ran on, even if those policies are controversial. We need to keep that fact in the front of our minds as we consider the behavior of Israel’s leftist body politic and the intellectual elite since the government took power. It is the people in the streets who are behaving in unprecedented ways in a functioning democracy, not the democratically elected government they oppose.

The people in the streets are claiming that the new government’s proposed policies amount to a coup against Israel’s governing system. That is rich in irony. By attempting to use mob action to change the rules of the very game they would happily have endorsed had the election results gone their way, it is the protesters who are seeking extra-democratic change, not the government.

This government came to power through the same process as every other government in Israel’s history. Had the situation been reversed—had rightists taken to the streets against a legitimately elected left-of-center government—everyone from Haaretz’s anti-Zionists to Danny Gordis would have been awash in outrage at the attempt to interfere with proper democratic processes. But the protesters believe (or at least enough of them believe) that their country’s descent into fascism and tyranny is upon them, and they are therefore in the right. The emergency they perceive has not only liberated them from conventional norms; in their minds, it has elevated their cause into a crusade.

These protests are not righteous. They are self-righteous.

And yet, it is also clear that the new government’s flurry of activity was a colossal mistake.

After seven years of profound political stagnation, a country cannot simply go from zero to 60 in one direction in a minute—and certainly not with a three-seat majority, which, though decisive, is not a game-changing landslide by any means. The gears of power grew rusty, the political machinery grew sluggish, and when the ignition was turned on and the government slammed on the gas pedal, the engine caught fire—and not in the part of the car most of us would have expected.

What we thought was that the trouble would come from the new government’s policies toward the West Bank, East Jerusalem, and the Temple Mount. Indeed, among Jewish liberals and leftists, the government induced a performative panic even before it was sworn in, typified by my own (now-ex-) rabbi announcing in the virtual pages of the Forward that he would no longer recite the prayer for the State of Israel at my (now-ex-) shul because the new government was “dastardly” when it came to its views of Arabs, the West Bank, and the (long-ex) “peace process.” And yet the first move related to those matters—a trip to the Temple Mount by the incendiary Itamar Ben-Gvir—produced no blowback. What’s more, the first real challenge faced by the government on the West Bank came not from its extreme ministers but through the testing of its resolve by Palestinian terrorists. That, in turn, led to extreme anti-Palestinian rhetoric from those extreme ministers, which immediately became part of the growing indictment of this nascent government.

But the part of the indictment that really caught the popular fancy in Israel wasn’t any of this. It was the rather more arcane issue of the composition of Israel’s Supreme Court and the power it holds over legislation.

Israel is very nearly a direct democracy, by which I mean, the checks and balances of the American system of government written into our constitution do not exist there. There is a single legislative body, not two, and that legislative body does everything. It’s a very flawed system, but that’s the system Israel has.

In the 1990s, the members of Israel’s Supreme Court decided they needed to step in and impose a judicial order. Led by Chief Justice Aharon Barak, they declared a “Constitutional Revolution” and unilaterally extended their own authority to determine whether Knesset legislation was or was not kosher.

This was arrogance beyond belief, especially since the Supreme Court is a self-perpetuating institution whose members (together with members of Israel’s bar association) have effective veto power over who gets to be a new justice. Which means the Court indirectly controls its own ideological and political composition. And this means in turn that the Court arrogated to itself the right to impose checks and balances when there are insufficient checks or balances on the Court itself.

Moreover, because of the nature of Israeli politics, the Court basically hews to the left. And not only to the left; of its 15 members, 13 are of Ashkenazi (European) descent in a country that is 50 percent Sephardic. This is not an accident, unfortunately, but a hidebound cultural bias on the part of the long-decaying Ashkenazi elite. In 1949, one of the first appointees to the Supreme Court, Pinchas Rosen, infamously declared in 1949 that “in the whole Sephardi community there is no worthy candidate for the Supreme Court.” It’s astonishing, and telling, that 74 years later the Court’s leaders should be implicitly endorsing Rosen’s disgusting assertion, given that the court has only two Mizrachi members in a nation of more than 9 million.

For much of the Israeli right, and especially for the intellectuals of the Israeli right, the Supreme Court issue has been a foremost concern for 25 years. And appropriately so. Thus it stood to reason that “judicial reform” legislation that reasserts Knesset primacy—which, in a counterpoint to the American system, features an “override” clause that would allow parliament to overturn a Supreme Court decision—would be taken up immediately.

But they made the mistake most advocates and activists make when it comes to matters of long standing that have consumed them, which is, they found it hard to see what their efforts would look like from the outside to people who haven’t been anywhere near as focused.

For one thing, the courts in general are a particularly sensitive issue at this moment because the newly returned prime minister is under indictment. As it happens, I think the cases brought against Netanyahu are garbage, but that doesn’t matter. If Knesset primacy is achieved, that would allow the new government to push through legislation postponing the cases against Netanyahu until he is out of office. And so, any efforts by the government to argue against the street protests against judicial reform seem compromised by a severe conflict of interest.

Second, while the Knesset should (in my view) have this primacy—at least until Israel hunkers down and actually writes itself a functional constitution—the legislation now moving through the parliament is strictly majoritarian. By which I mean, it would take only 61 votes to overturn a court ruling.

From the moment the street protests began, everyone I know who is sympathetic to the right’s view was saying the solution to the crisis would be to announce a change in the “override” proposal to require some kind of supermajority that would at least be greater than the 64 seats currently held by the coalition. That would focus the minds and limit the arrogance of the Supreme Court when it came to their taste for overreach. And it would keep the Knesset from acting as though anything it does is legal by default—since pretty much any piece of legislation that passes even by a single vote could be upheld by the same voting pattern if brought up a second time after a Court overturn.

The unanswerable question is whether a redrafting of the law to feature some kind of supermajority in the early days of the protests would have quieted the street action. I can see arguments on both sides. But it’s certainly the case that the judicial reforms as they are (at this writing) constituted have kept the government on the back foot and on the defensive, which just makes the protesters taste the blood of their enemies in the water and only encourages them to continue.

So that’s my explanation for what’s been going on in Israel. I have no idea where this goes now, so don’t ask me. Though you probably will.