Discover more from The UnPopulist
Israel’s New Right-Wing Government’s Assault on Its Judiciary
If it succeeds, it’ll represent a major leap towards authoritarianism in the country
Israeli politics have been in tumult for the last many years. Since April 2019, the country has held four consecutive elections as one government after another collapsed. The last one led by outgoing Prime Minister Yair Lapid was the politically broadest in the country’s history—consisting of an Arab party, on one end, and right-wing leader Naftali Bennett, on the other. In an unusual arrangement, Lapid and Bennett rotated the prime ministership. The tragic fall of their government paved the way last November for the return—for the sixth time— of Netanyahu, despite a corruption trial against him.
This time, Netanyahu has put together a coalition that can be fairly described as far-right. Besides his own center-right Likud Party, it consists of five other politically and religiously ultra-conservative parties that, until recently, were considered too extreme. They have no use for the two-state solution to accommodate Palestinian aspirations for statehood. They champion the formal annexation of occupied West Bank and are ardent ethno-nationalists who interpret the idea of Israel as a Jewish state in far more extreme a way than average Israelis.
They all also see Israel’s liberal leaning and fiercely independent judiciary as a major obstacle to their designs (not to mention suspending the trial against Netanyahu). One of their first acts in office two weeks ago was to propose sweeping reforms to the Israeli judiciary that sparked mass protests around the country.
Allison Kaplan Sommer of Haaretz, among Israel’s most respected publications, interviewed Brookings Institution’s Benjamin Wittes, one of America’s leading legal experts, for his views on the proposal. It is a genuinely thoughtful and informative conversation comparing and contrasting the Israeli and the U.S. judicial systems that elucidates just how much these reforms will weaken a longstanding and vital check on the Israeli government’s power and erode Israel’s standing abroad.
The UnPopulist brings it to you with a heavy heart. You can listen to it or read the transcript below.
Allison Kaplan Sommer: Hi and welcome to Haaretz Weekly. A civil war, for now a war of words, is raging in Israel over the first big legislative steps proposed by Prime Minister Benjamin Netanyahu's new government. Opposition leaders and legal figures are calling the plan unveiled by Justice Minister Yariv Levin to reform and transform Israel's judicial system as being no less than regime change and a coup.
Former Supreme Court President Aharon Barak says it will leave Israel with only one branch of government and a crippled Supreme Court, he says, will leave citizens with no defense against the removal of any and all of their rights. Levin has shot back that Barak was the one who "destroyed democracy by negating the will of the people when he dramatically expanded judicial powers in the 1990s." We've been discussing the brewing crisis over the power of the court on this podcast with Israeli experts over the past few weeks, but now it's time for a view from afar.
Benjamin Wittes is a senior fellow in governance studies at the Brookings Institution in Washington DC and one of the most respected commentators on legal affairs in the US. His big claim to fame is sitting at the helm of the blog Lawfare, a must-read for anyone who's anyone in the legal world in the US, particularly as it relates to security matters. Ben is also a frequent visitor to Israel and very familiar with the Israeli legal system, so he is the perfect person to take a look at what's going on here from the perspective of US officials and American Jews.
Hi, Ben, it's an honor to have you on the podcast.
Benjamin Wittes: It's a pleasure to be here. Thanks for having me and thanks for that very kind and excessive introduction.
Allison: Just for fun, I went back and I looked at an interview you did with Haaretz in 2019. It opened with you saying, "Whereas the US will be rid of Trump one day with his legal institutions intact, Israel's balance of powers may be left permanently off-kilter post-Benjamin Netanyahu." How does it feel to be so prophetic?
Benjamin: Haaretz caught me at an optimistic moment at that time about the US. There were dark days when I was afraid we would never be rid of Donald Trump. I'm delighted to have been interviewed at a moment when I was in a position to be right rather than holding my head in my hands.
Allison: Since that interview in 2019, a lot has happened. Netanyahu was already in legal hot water then but he was too politically unstable to really make any moves to undermine the power of the judiciary. Then he was out of office for a year. Now he is back and stronger than ever. His first big move as prime minister with a stable majority is to dramatically weaken the judicial system in a way that he claimed to oppose a decade ago.
Obviously, everyone thinks this has to do with him being on trial, but there are also signs that members of his government are even more committed to this plan than he is as part of the wave of right-wing populism that got him into office and seems to be a trend across the world. Is this unique to Israel? Is this part of something global? How do you view what's going on here now?
Benjamin: It is certainly not unique to Israel. The reform of the judiciary in the United States, which it has taken a different form for reasons we can talk about, has been a conservative obsession for many decades now. Some of the language associated with it is very similar. In addition, if you look at what the ruling party in Poland has done, there are some similarities with respect to its move toward the judiciary, toward what the Netanyahu government is now proposing, so it's definitely not unique to Israel.
What is unique to Israel and what makes Israel, I think, particularly vulnerable to this kind of populist machination is the odd constitutional or non-constitutional structure against which it's taking place. That is, Israel has a court that is at once uniquely vulnerable to this legislative change, but also unusually powerful. That combination is, I think, a very explosive one and has definitely contributed to the generation of this crisis.
Allison: In the 2019 interview, Ben, I will quote you as describing the Israeli system as being “super weird.” I don't know if that's a technical legal term.
Benjamin: Yes. Let's pinpoint two aspects of the weirdness. One is the one that everybody talks about, which is that there is no written constitution and so all of the constitutional arrangements are amendable by the Knesset with a mere majority vote. Here I don't mean a 61-vote majority like the proposed override, but a majority of whoever happens to be present can change a basic law. If you think about that in contrast to say the United States, it's when the Supreme Court of the United States makes a First Amendment ruling, it would require a constitutional amendment to change it. That requires 2/3 of both houses and then 3/4 of state ratification.
It's a dramatically difficult thing to amend the US Constitution. By contrast, to amend the Israeli non-constitution is a relatively trivial matter and happens all the time. On the other hand, and this is the vulnerability and this is the feature, the weirdness that people don't talk about the Israeli Supreme Court with respect to as much, it is a uniquely powerful institution. It has not just the authority of judicial review, which a lot of countries have a judicial review mechanism. But it is the court of original jurisdiction over any challenge to the lawfulness of government policy with no standing requirements and almost no barriers to adjudication.
You don't like who's been named cabinet minister, you file a petition in the Supreme Court. You don't like the route of the separation barrier, you go straight to the Supreme Court. All of these fights that in other judicial systems would play out in the political process in the first instance, and then only get to court adjudication after years of policymaking, start out with litigation in Israel. I think that puts the court in the firing line of politics in a way that's unusual. I think the court in Israel is more contentious right now even than the court in the United States.
Allison: The court has a huge amount of power, and basically, this proposal wants to take away almost all of its power. We're talking about a zero-sum game here, right?
Benjamin: Right. It has a huge amount of power. The foundation of that power is paper-thin. It's like you've built this giant weapon, which you can think of as, if you hate the court, as an offensive weapon, or you can think of, if you're a defender of the court, as a defensive weapon. It's extremely powerful. But it's built on a pillar of sand. If you think about it, the court itself is merely a creature of the Knesset. The Knesset could abolish it if it wanted to. It's this very strange interaction between a system of almost pure or maybe pure parliamentary supremacy and a court that reserves for itself and that the political system has allowed it to have these really unusual authorities to intervene in government policy.
Allison: When you've got this growing small but now powerful group of ideologues who visit Washington and meet with the Federalist Society and really have a very strong ideological bent, and they're in a system in which the political echelon is allowed to take away the court’s power and now they're in political power, it's inevitable that this is going to be something that is high in their priority list and that they're going to do. It's easy pickings.
Benjamin: I think that's right. I do think the purported marriage with American judicial conservatives is almost entirely fictitious, not in the sense of it hasn't happened, but that it's a lot of legal nonsense. The Israeli legal system is entirely different from the American legal system. To the extent the court has behaved this way, it has behaved this way with Knesset's tolerance over a long period of time.
Whereas the US Congress, the states that the US Supreme Court has sometimes been imperious towards, they don't really consent to the court's engagement with them that way. I think when Israelis talk about judicial activism in the language of American conservatives, that's a very specious comparison, and the concept, I think, makes a great deal more sense in the American context than it does in the Israeli context.
Allison: Turning to the content of the reform proposals for a moment, the big-ticket item obviously is the override clause, which would allow the Knesset to nullify high court decisions by a simple majority of 61 votes in the 120-seat parliament. We've done a whole podcast on the override clause with Yaniv Roznai a few weeks ago. How does it look through American eyes that Israel is on the brink of making its court completely subject to the ruling political majority?
Benjamin: It's a really interesting question. I don't have a problem in principle with the idea of an override clause. A lot of countries have them, including the United States, by the way. Ours is particularly onerous. It requires amending the constitution, but the ability to amend the constitution is there. You can say ultimately the democratic process has its way. The problem in the Israeli context is not the fact of an override clause. In fact, there already is an override clause. The Knesset can change the underlying basic law anytime it wants and it can do it without 61 votes.
What is this really changing? The answer is, in terms of the raw power of the Knesset, it's changing nothing. It's changing only, and this is really, really important, how much political will it requires in order for the Knesset to work its will on the court. Under the current regime, the Knesset can do it with 25 or 35 votes change of basic law, but they'd have to be willing to put their names on a law that says basic human dignity doesn't apply to Palestinians in this situation. Everybody gets human dignity except blah, blah, blah, except migrants who do X. That's a really hard vote to take, to say that human rights don't actually apply in this situation.
On the other hand, what this allows you to do is not change the underlying law merely to dismiss the interpretation of the law applying it in a specific instance. That's a much, much politically easier vote to take. We're not saying that everybody doesn't have the right to human dignity or that there is an exception for X situation, we're merely saying that the court was wrong to interpret it as applying in this situation. That's a permission structure, I think, for basically rule by exception.
I think it's very dangerous. I think there is a really interesting question. How high would the number have to be? What's the threshold above which you say this is a reasonable check on a very powerful court? I wouldn't presume to make that decision on behalf of the Israeli population of which I'm not a part. I do think the idea that the government alone can do it denudes judicial review of a lot of its meaning.
Allison: Even though this is a democratically elected government, poll after poll after poll shows that Israeli people favor, on a popular basis, keeping more power in the court's hands and not handing over so much to the party that happens to be in power.
Benjamin: Although I'm not sure that speaks to me all that much because if it were wildly popular to do this and structurally unsound, I would still oppose it. I think the key question, or at least to my mind, the key question is, should the government whose actions are being reviewed be the vehicle through which permission is granted to the court to engage in that review, or should there be some external check that doesn't depend on the government's will? If you have only a 61-vote majority required to overturn a ruling, you're saying you have judicial review if we let you and only if. It seems to me that's structurally very unsound.
Allison: Let's touch on some of the other three elements of this initial proposal because they say this is only a first step. Judge selection, giving the government control over the selection of judges. Currently, we have nine members on the selection panel. Under the Levin plan, that number would be increased to 11, there would be seven from the coalition. There would be one opposition member of Knesset, and as now, there would be three judges. There were two members of the Israel Bar Association. They're currently part of the committee. They would be removed under the plan.
The committee requires seven votes to approve new judges and these changes would essentially give the coalition complete control over the selection process because the judges would be so outnumbered that approvals could happen even without any of them agreeing. This addresses one of the critiques of the current situation, a clubby insiderness of judges picking other judges. Advocates of this plan say, "Hey, judicial appointments in America are completely political. What's the problem here?" Do you have a response to that?
Benjamin: Yes. I hate the Israeli system for appointing judges. I don't like the committee that is currently composed, used to be composed of mostly members of the judiciary, is now composed I think by a third of it. I don't love that system. That said, the American system, which is, by the way, no great shakes either, is all political, but it's political from two separate branches. The president nominates and the senate confirms. That can be very contentious, by the way, as anybody who's watched our Supreme Court nomination process in recent years, that is not a system in which the president simply names whoever he wants. It can operate that way in periods of unified party control, but it can also operate as the Senate basically stopping or slow-rolling very large numbers of nominations. I don't think the problem with this proposal is that it puts too much weight in the political process.
The problem is it puts all of the political weight in the ruling party or the ruling coalition. You have a majority of the committee that would come from the ruling coalition. As you say, it could do whatever it wants without hearing from anybody else. Again, like the judicial review mechanism, which becomes subject to the will of the majority coalition, this makes the committee subject to the will of the majority coalition. Again, putting, I think, too much power in the hands of the government.
Allison: Moving on to the third part of the plan, the reform wants to revoke the “reasonability or reasonableness” [standard] that the high court uses to review all government actions. Because of the lack of a constitutional structure, administrative review of the government is the only thing standing in the way of the prime minister doing whatever he wants, being the minister of justice for himself, and holding all of the ministerial portfolios himself.
This reform is considered urgent, needs to be done ASAP because the appointment of Shas's Aryeh Deri as a senior minister with his corruptions convictions is now as we speak under review by the Supreme Court after many petitions challenging the reasonableness of his appointment. The attorney general has already said she can't defend that appointment. Reasonableness is designed to prevent the government from passing crazy, arbitrary decisions and not abusing its authority. Now, the US doesn't have this because it has other checks and balances built into the system. What do you think of Israel getting rid of it?
Benjamin: This is very complicated issue for me. As I said before, the Israeli Supreme Court is a uniquely powerful institution among courts because it has this original jurisdiction over challenges to government policy, including this reasonableness review. This causes early judicial review of all kinds of things that to an American law court shouldn't be anywhere near as early in the process as they are. That said, I think your point is, the key one that this is one of the few checks that exists in the Israeli system on the government.
Think about in the United States, just as the extreme other contrast, you don't like the appointment of Alejandro Mayorkas to be secretary of homeland security because you don't like the way he has handled border issues or will handle border issues, you're not going to go to the Supreme Court to deal with that. But it is subject to Senate confirmation. Senate is an independent check on the executive. In addition, there are border states that have independent authorities. We have divided sovereignty between the states and the federal government, and within the federal government, he's subject to ongoing oversight by the Senate.
It's an independent branch of government from the executive that appointed him. You even have cities in the United States that say, "Okay, we're sanctuary cities. We're not going to help the federal government enforce immigration law." You have a lot of different levels of government and branches of government that are capable of pushing back on Alejandro Mayorkas, by the way, who I have no problem with and think is doing a fine job. I just picked him randomly.
By contrast, if you are somebody who objects to the appointment of Aryeh Deri, he's not subject to review by an independent legislature for confirmation. There's no state of Arizona or state of Texas that's going to push back on his policies and will bring him to court over and over again. There's no sanctuary city that says, "We're not going to cooperate with the health ministry," or local jurisdiction that's going to say, "The interior ministry doesn't have jurisdiction. We're not going to cooperate with them here."
I think there's a profound structural difference. I'm not opposed at all to a change that would limit reasonableness review, but you have to replace it with something. There has to be something other than pure parliamentary supremacy, which in the Israeli context, because the parliament actually doesn't do very much, it delegates everything to the government, becomes a kind of a dictatorship of the cabal of the government, which is only subject to the government falling.
Allison: Finally, point number four, legislation that would allow ministers to appoint their own legal advisors instead of getting counsel from advisors subordinate to the attorney general. It's not in this first proposal, but there's a lot of talk about the next steps being dividing up the job of attorney general who is in Israel both legal advisor to the executive branch and the chief prosecutor of the state, which is a tricky situation.
The coalition parties want to split up these roles so that the state's chief prosecutor would be autonomous and not subordinate to the attorney general. And the legal establishment deeply and unanimously opposes this split. You've spoken before about the differences between the role of attorney general in Israel and in the US. What do you make of this attempt to divide and weaken the role of attorney general and the office, the justice ministry in Israel?
Benjamin: There's actually two questions here, and they're separately important and I want to treat them separately. The first is the question of the legal advisors within the different ministries. I'm a weird beast professionally. There is no level of Israeli government that I have dealt with more deeply or consistently than legal advisors to ministries for just reasons related to what I do. This is an exceptional group of people just in terms of their capabilities, their political independence, their intellectual accomplishment.
People are talking about this in terms of a war on the office of the attorney general, but we should pause a moment and say, "As an initial matter, it's an attack on the idea of these extremely high-quality civil servants embedded in ministries who are actually capable of giving binding legal advice with a certain degree of professional autonomy." That is a remarkable thing. It is a genuine accomplishment of the Israeli legal establishment and the Israeli government as it has developed that this group of people exists.
I think one of the very dangerous ideas in this proposal that you would make war on this and make these people subordinate to the government and to the individual ministers. Sometimes the legal advisor to the minister's job is to tell him, "’You can't do that. It's not lawful’ … or … ‘do it this way, not this way’ or … ‘We can work on this policy proposal, but we can't do X’." That is way, way, way harder to do if you are subordinate to that person in a fashion that makes your job dependent on them.
The second issue is the weakening of the role of the attorney general. I just want to say, for American listeners, when we talk about the Israeli attorney generalship, this has no relation or almost no relation to the role of the US attorney general. It's the same name, but it's a very different office. This is the part of this reform that is most directly responsive to Netanyahu's legal problems. The previous attorney general ultimately gave the go-ahead for the prosecution and could, I suppose, theoretically pull the plug on the prosecution either at this stage or at some later stage.
The idea that the attorney general should not merely be named by the government, but should be subordinate to the government is part of this same issue that played out before the government was formed with respect to the police commissioner and the police's subordination to the minister on policy matters and on investigative matters. I think this is the part of it that is most corrupt in the sense of— except, I suppose, the reasonableness review as to Deri—but there's a real policy issue there.
Here I don't think there is a real policy issue. This is just an area where the system is working and Netanyahu has decided that it's working too well and at his expense. He is, for very self-interested reasons, interested in making sure the attorney general is subordinate to the government. I think this is the part where there's really no interesting policy issued to discuss, just the self-interest of the people involved.
Allison: How do you see all of this affecting the US-Israel relationship and the relationship between Israel and American Jews like you? We always talk about shared values and the only democracy in the Middle East, et cetera. I have to emphasize this is especially happening at a time when we have an Israeli government that flatly rejects a two-state solution, is actively doing everything it can to undermine it, which already is putting it in conflict with official US foreign policy.
Benjamin: I would love to say that American Jews will rise up in anger and protest at the structural democratic or anti-democratic nature of Israeli judicial reforms, but that's a lot of nonsense. It won't happen. American Jews of a non-orthodox bent are already pretty uncomfortable with a lot of Israeli policy, particularly on Palestinian and human rights issues. They are very supportive of Israel as an entity, but they are in broad strokes, and particularly the younger they are, the less comfortable they are with Israeli policy.
There's not a lot of patience in the American non-religious nationalist community for things like aggressive settlement building and there's a lot of support for things like the two-state solution. You're already operating against a backdrop of a certain degree of friction with American Jewish values. This is pretty technical con law stuff, and I don't think the average American Jew cares very much or will even stop to think very much about the question of how many votes it should take to override a Supreme Court opinion in Israel. Moreover, they've never even heard of “reasonableness review.”
It may contribute to some generic sentiment that bad stuff is happening in Israel and Netanyahu is something like a Richard Nixon or a Donald Trump. I don't think it's going to be the flashpoint that triggers any rupture. The much more substantial issues for American Jews are human rights issues, and frankly, religious freedom issues. American Jews are of course much more religious in a non-orthodox sense than Israeli Jews are. There's a lot of resentment at the dismissal by the Israeli religious authorities of conservative and reform rabbis and institutions, which is of course what most American Jews affiliate with.
Allison: Based on the fact that Israel has fought tooth and nail at every turn at attempts to bring it into any international courts, international adjudication for its actions in the West Bank and elsewhere, do you feel that if this legislation goes through, its weakened judiciary, the elimination of judicial review is going to make it more vulnerable to this happening?
Benjamin: It will certainly make it more vulnerable. The reason is that the strength of the Israeli judicial system is one of the arguments that Israel makes about why international tribunals should not get involved. It's actually one of their best arguments. If you read submissions that they make to these courts and arguments that they make about them, the argument goes something like this. First of all, you have no jurisdiction over the conflict. But secondly, we have this robust judicial system. We have lawyers attached to every army unit that are reviewing operations for legality under the law of armed conflict.
We have courts. We have a very independent Supreme Court that gets involved in battlefield decisions sometimes and swats government policy down and reviewed the very wall that you're now thinking of reviewing. We have all these systems to keep ourselves in line, and you're supposed to get involved only when countries are unable or unwilling to look at their own legal conduct, and that's not the case here.
I think that's a much weaker argument if you imagine a situation where the Knesset has passed some very offensive law to international justice standards, the Israeli Supreme Court has struck it down, and then the Knesset has said, "Yes, to hell with you, we're doing it anyway." I do think an international tribunal is likely to look at that situation and say, "Hey, you say you have all these great institutions, but you reserve the right to ignore them in the circumstances in which they most matter, and that's what you did here."
Allison: Ben, you said you've had these positive interactions with legal experts in Israel, with the system in Israel. As a legal expert who deals with the Israeli system, what are your feelings going forward about engaging with the system following this reform should all of the elements pass?
Benjamin: It's a very, very hard question for me. My engagement with Israeli legal culture has been pretty deep over a lot of years, and the premise of that engagement has always been that Israel is a complex, imperfect democracy that is using the law to struggle with very, very hard problems. The masthead of the slogan of Lawfare, the site that I run, is hard national security choices. I got interested in the Israeli legal system because Israel was facing a lot of similar hard national security choices that the United States faced in the period after 911 and had been doing so for a long time. It was a really interesting way to look at the way another highly legalistic democratic society engaged a series of questions.
I've been criticized over the years, mostly at a personal level people just talking to me, "No, Israel's not really a democracy." My answer to that has always been, "No, actually, that's wrong. However much you may criticize Israeli democracy, however imperfect it is, it is actually a society that is functioning under law and rules and responding to very hard questions through that framework." I look at this reform and I say, "I'm not sure that would be true anymore."
If you imagine these reforms passed in full bloom as the justice minister is contemplating them or proposing them, you would have a situation in which the government could name the court over time without substantial input from anybody else. It would limit the court's ability to review government conduct. In situations in which the court did review it and found a law unconstitutional or in conflict with basic law, it could ignore it. That actually doesn't feel to me like a society of law—that feels to me like Athenian raw populist democracy.
I find the struggles of such a society much less interesting. I would have a hard time engaging that as a society that is struggling with hard problems under the rule of law. It would look much more to me like a country that is struggling with hard problems under simple majoritarian populism. At a personal level, and I would never tell anybody else how to behave, I do think it would change very fundamentally my regard for the integrity of the Israeli legal system.
Allison: Ben Wittes, thank you so much for coming on the podcast. It's been great to have you.
Benjamin: It's been a pleasure. Thanks so much for having me.
Copyright © Haaretz.