Israel, Constitutions and Listening

Shabbat Va’etchanan/Nachamu 5783 

Perhaps the most classic of all synagogue jokes tells the story of the rabbi who takes a new pulpit, and discovers that the congregation has a difference of opinion on how you are supposed to say the Shema.  When they come to the central prayer of monotheism, half the congregation stands, while the other half sits.  The first week that’s fine, but the next week people begin to argue when they come to the Shema about whether to sit or stand, the following week they actually start to come to blows.  The new rabbi is desperate to resolve this situation before it gets any worse, so he asks for the name of the oldest member of the congregation, the one who’s been there the longest.  “That’s Mr. Goldberg,” he is told, “He is 102 years old, and he lives in the Jewish Home for the Aged.  But he was here at the beginning.”  The rabbi goes to visit Mr. Goldberg.

“Mr. Goldberg, tell me,” says the new rabbi, “When you first started the shul, did everyone stand for the Shema?”

Goldberg answers, “That, that I don’t remember.”

“Ah,” says the rabbi, “We are getting somewhere!  So the congregation all sat for the Shema?”

But Goldberg answers, “That, that I don’t remember.”

“Oy,” says the rabbi, “Mr. Goldberg, please try to remember!  It’s very important.  Whenever we come to the Shema half the people sit and half the people stand.  And then they start shouting at each other, and even fighting!”

And Goldberg replies, “That—that, I remember!”

I thought about that joke as I prepared for this Shabbat, not only because this is Shabbat Va’etchanan, when we have the text of the Shema in our Torah reading, but also because of what’s happening now in Israel.  My friends, ever since the beginning of the effort the Netanyahu government had been making to cut the powers of the judiciary in Israel, and the rise of the huge protest movement in response, I have been telling you that things were not as dire as they seemed in the press, and that Israel would find a compromise way out of this mess.  I regret that the passing this past week of the first stage of that quote-unquote “Judicial Reform” process leads me now to believe otherwise.

To recap, as soon as the right-wing Likud-led Netanyahu government took power in December of 2022, Bibi Netanyahu announced a sweeping program of what he called “judicial reform” that would nearly eliminate the power of the Israeli Supreme Court to limit or reverse illegal actions taken by the Knesset, the Israeli parliament, or the government ministries.  This balance of power, the only structural aspect of balance in the Israeli governmental system, had existed since the founding of the State of Israel in 1948.  Since Israel has no formal Constitution, the Supreme Court provided the checks-and-balances integral to a democratic state.

Now, when Netanyahu was running for Prime Minister—again—last year he made no mention of “judicial reform” as a key aspect of his incoming program.  In fact, the close election that brought him back to power, and the narrow coalition of right-wing and religious parties that gave the government its 62-58 margin of support, was primarily based on the usual Israeli public’s concern over security, bitachon.  Netanyahu is always seen as a safe option when Israel feels threatened, either by terrorist attacks from Gaza or the West Bank, or by foreign powers, such as Iran’s nuclear aspirations.  During Israel’s sixth national election in five years there was nothing in Likud rhetoric to suggest that attacking the judiciary was a principal motivation of the coalition, or that creating a national political crisis was a goal.

Virtually as soon as he returned to the Prime Minister’s office—Netanyahu had previously been in power twice, for a couple of years in the late 1990s and then for 12 straight years—in the last days of 2022 Bibi suddenly proposed sweeping changes to the Israeli governing system.  Those bills, which he produced all at once, would gut the system of judicial review, severely limit the power of the Supreme Court to invalidate any laws, and essentially end any systemic checks-and-balances and any limitations on the power of the executive to do whatever it wanted.

How would that work?  It goes back, in part, to the issue of a Constitution.

I apologize for the lesson in civics, but a constitution is a document that mandates the system used for governing a nation.  It can be modified over time, an important but difficult process, but most of the time it sets up the way laws are made, enforced and reviewed.  In some countries, like the US, there are two separate, elected bodies that vote on legislation—that’s called bicameral—while in other nations, like France, there is just one, usually called a Parliament, a system known as unicameral.  There is always an executive, headed by an elected President or Prime Minister, who leads a bureaucracy that implements and enforces the laws made by the legislature.  Foreign policy is typically more in the hands of the executive branch, but the legislative branch has significant input over this as well, particularly because it has to vote on most or all expenditures.

Every democratic nation has some sort of judicial oversight of the process of making and enforcing laws.  That is, as a way of making certain the ideals and rules in the constitution or other governing documents of the nation are implemented properly and not violated, a set of courts has the authority to rule a law passed by the legislature is not legal, or to stop the executive from acting in ways that violate the Constitution.  We are familiar with this process in America, and it works a bit differently in every other democracy, but there is always this three-part process: the legislature makes the law, the executive implements the law, and the judiciary reviews and oversees the whole process to make sure it’s all, well, kosher.

Now, most democracies have a constitution: the US has one, France has one, Italy has one, Australia has one, and so on, and that’s helpful in this process.  The highest court—usually the Supreme Court—has the power to say that laws or actions by the president or prime minister don’t follow the constitution and are invalid and are thrown out.  Having a constitution does not guarantee you have a democracy, however: many autocracies have beautiful constitutions, including dictatorial regimes like Russia, Cuba, China, Iran, and Syria.  A lovely written constitution that isn’t implemented to protect human rights isn’t worth the parchment its written on.

Now in a democratic nation without a constitution the process of governing is quite similar to a nation with a constitution; it’s just that the basic laws that oversee everything are not in one codified document.  Israel, perhaps unfortunately, doesn’t have a constitution.  That doesn’t make it undemocratic.  There are a number of important democracies that don’t have a written constitution: England, Canada, New Zealand and Sweden are among them, and democracy works quite well in all of them, thank you very much, without a constitution.

However—and it’s a big however—because Israel has what are called Basic Laws and does not have a constitution, the judiciary’s ability to oversee the legality of the actions of the government are not enshrined in a semi-sacred document.  That means that when the government wants to change the rules of how the nation is governed it’s not as difficult as challenging a constitution.  And because the Prime Minister, in Israel’s parliamentary system, is the head of a coalition of parties that have the majority of seats in the Knesset, the executive and legislative functions are more or less in the hands of one guy.

Here in America, if President Biden decided he wanted to pack the Supreme Court to stop it from invalidating things he supported, he’d need a Constitutional Amendment to do it—that is, he’d have to change the Constitution, which requires not just a majority vote of both houses of Congress but a two-thirds vote of both, followed by a ratification process that would have three fourths of the state legislatures voting separately to approve the Amendment.  Any US Constitutional Amendment therefore needs massive public support to pass.

But in Israel, where the Basic Laws are the standing version of a constitution, in order to change something as foundational as the oversight of the Supreme Court over laws and policies, you just need a majority of the Knesset—61 votes out of 120.  That means that once your coalition government is formed after the election you can, theoretically, put through massive changes without much of a majority at all. 

In the current situation, Netanyahu’s government coalition has a narrow majority of the Knesset; just 64-56, but a majority.  However, the election that brought them to power just eight months ago did not contain a whiff of the idea of remaking Israel’s basic governing system so that the Prime Minister would have far more control and the Supreme Court far less control.  When Bibi Netanyahu proposed sweeping changes he catalyzed a huge protest movement in Israel that has only grown stronger over time.  Polls in Israel show a large majority of the population oppose the so-called judicial reform plan: just 25% of Israelis support it, while if an election were to be held today the Likud coalition would drop from its current 64 seats, a majority, to just 52 seats, a clear minority.  Netanyahu’s approval ratings have fallen to 38% positive. 

If you don’t believe polls, the massive, persistent, nation-wide demonstrations against judicial reform testify to huge public disapproval of the direction all this is taking.

Last week, the first phase of “judicial reform”, the coup against the Supreme Court, passed the Knesset.  The vote was 64-0, reflecting the fact that all of Netanyahu’s coalition held together and the unified opposition boycotted the vote as an undemocratic assault on the system of Israeli democracy.  Interestingly, the Supreme Court itself could invalidate the new law limiting its own powers, but seems unlikely to do more than narrowly limit parts of it.  After all, the Supreme Court is a legal body that reflects the values and ethics of all of Israel’s laws and traditions.  It is likely to act with typical restraint—unlike Netanyahu’s Knesset coalition.

In the wake of the passage of this first law there was international consternation among other democratic nations, including the US.  Perhaps more crucially, Moody’s immediately downgraded Israel’s credit rating, and the Tel Aviv stock market plunged. 

Judicial reform, aka the coup d’etas against the Israeli Supreme Court, is bad for Israel on many levels: it creates an undemocratic image of a highly democratic country, equating Netanyahu with dictators like Orban in Hungary and Edrogan in Turkey.  It is bad for Israel’s economy, creating the impression that democracy itself is being destroyed and that’s bad for business.  It is bad for Israel’s security, as a mass refusal of reservists to serve is causing readiness issues for the Air Force and the IDF in general.  And it is terrible for Israel’s public climate of respect and Jewish unity.

So why is all this happening?  In part, because Bibi Netanyahu does not want to go to jail for corruption.  In part, because extreme right-wing settlers want to be able to co-opt land and build settlements on Arab property.  In part, because groups in the current Israeli government with a preference for authoritarianism, religious and otherwise, and a distrust and even hatred of republican processes and liberal democracy are pushing for more control and domination.

We can’t control events in Israel from here.  Please understand that Israelis are, at heart, a highly pragmatic people.  They are Jews who get things done in their own idiosyncratic way.  But this judicial coup is genuinely bad for the country in every way.

My hope—I mean, Hatikvah means “the hope”—is that this protest movement will genuinely galvanize a new consensus in Israeli politics that changes the country into a better, healthier, more authentic expression of Jewish values.  That’s how democracy, at its best, works: by giving the highest hopes and dreams of people the opportunity to thrive, to be nurtured into fruition, not thwarted and stomped on by authoritarians.

We will wait and see what happens next.  But we are personally worried about the current direction of politics, and policies, in Israel.

Now, the fact that this first stage in dismantling the judiciary’s authority came the day before Tisha B’Av demonstrates that the current Israeli government has no appreciation for irony.  But that this Shabbat is Shabbat Nachamu, the Sabbath of consolation or comfort might give us some hope.

Our people has surely seen much worse events in the course of our long history than this first bill undermining the Supreme Court’s authority in Israel.  And we have a remarkable ability to rise from difficult times to find a new, better path.  Our prayers on this Shabbat Nachamu are that the Israeli public, and its government, find a way out of this mess speedily and soon.  After all, they are smart, practical people.  If they could overcome Arab armies, and boycotts, and economic distress to become the successful modern nation they are today, they can surely overcome their government’s mistakes.  And they can learn to listen to their own people.