Reactions to Israel's Judicial Overhaul

Wednesday, July 26, 2023
Amir Cohen/REUTERS
Speakers

Jeane J. Kirkpatrick Senior Fellow for National Security Studies, Council on Foreign Relations

Eni Enrico Mattei Senior Fellow for Middle East and Africa Studies, Council on Foreign Relations

Lowy Distinguished Fellow in U.S.-Middle East Diplomacy, Council on Foreign Relations

Presider

Managing Director, Global Communications and Media Relations, Council on Foreign Relations

CFR experts discuss the latest developments in Israel, including ongoing protests against the government's recent decision to limit the powers of the country's Supreme Court. 

SCHMEMANN: OK. Good morning, everyone. I’m Anya Schmemann, managing director of communications at the Council on Foreign Relations. And I’m pleased to convene this briefing on the situation in Israel.

I’m joined by three distinguished colleagues from CFR: Martin Indyk, Max Boot, and Steven Cook. You can look up their bios on CFR.org, but suffice to say that all three are authorities on Middle Eastern politics and U.S.-Middle Eastern relations.

The situation in Israel is moving quickly. We’ve convened this group to give us a snapshot. We encourage all of you to find additional resources on the Council on Foreign Relations website, CFR.org, and to follow up with our team if you have any questions or seek additional commentary. You can email Communications at CFR.org to learn more.

We’re going to jump right into it since our time is limited today. And I’m going to ask Steven Cook to start us off.

Steven, Prime Minister Netanyahu has proposed an ambitious and far-reaching judicial overhaul. Can you give us the elements of that plan and why it is so controversial?

COOK: Yeah. Well, thanks very much, Anya. And just because we don’t have a tremendous amount of time, I’ll try to be exceedingly brief in my comments.

In general, the judicial-overhaul bill would make it harder for the Israeli judiciary to practice oversight over government policy and legislation coming out of the Knesset. It would also fundamentally alter the way in which the—in which justices are chosen. And both of those things—put those two together would significantly alter the balance of power among Israel’s branches of government. Because Israel is a parliamentary system, it would weigh much more heavily towards the government/legislature than the Supreme Court.

Quite obviously, opponents of these measures are outraged and believe that this will undermine democratic principles of the Israeli government. Proponents argue that the Supreme Court in particular has usurped responsibilities of both the government as well as of the Knesset and that a corrective is necessary. And what they are proposing in a number of parts will be that corrective.

What happened just the other day was that the first part of this legislation, essentially limiting what’s called the reasonableness clause, which was a tool that the Supreme Court used to evaluate government policy, and at times countermand government policy, the Supreme Court is either limited or outlawed from using the reasonableness clause in a number of instances.

So, to give you an example, Prime Minister Netanyahu had wanted to appoint the leader of the Shas Party, Aryeh Deri, to be his finance minister. The Supreme Court ruled, based on the reasonableness doctrine, that Mr. Deri could not serve as the minister of finance because of a long litany of financial crimes, including money laundering, tax evasion, and corruption.

Now, with this first piece of the judicial-reform package passed, it’s conceivable that Aryeh Deri could become a government minister. There’s a whole host of other issues that are conceivable that the government could move forward on without the Supreme Court being able to review what the government is doing. And the most extreme of those is formal annexation of territory in the West Bank. I think I’ve covered most of it in the short time that we have.

Thanks.

SCHMEMANN: Thank you, Steven. Thank you for setting that stage.

So, Martin Indyk, Israel has been wracked with protests for months. Why has there been such a visceral reaction to this proposal?

INDYK: I think that the legislation to change the role of the judiciary to curb—to undermine its independence, to undermine its ability to provide a check and balance to the executive branch, which controls the Knesset, is quite radical and has sent an alarming message to a large part of the secular liberal side of the Israeli political spectrum, which begins in the left but goes across to the center and to the secular right with some right-wing parties like Yvette Lieberman’s party involved in the opposition to this legislative overhaul as well. So you’ve got, essentially, a fear that a far right-wing government, the most far right in Israel’s history, is going to use its four-seat majority to fundamentally change the balance of power between the judiciary and the executive branch and legislative branch and that is seen as a threat to the democratic nature of the state.

There’s always been tension between the Jewish side of Israel’s nature and the democratic side as a Jewish and democratic state but this tension has now broken out into an all-out conflict, as we see in the streets of Tel Aviv and Jerusalem and many other cities in Israel as well. Hundreds of thousands of Israelis feel that the future of their country as they imagine it, as a democratic state, is now in jeopardy and they’re determined to try to stop it.

Now, they’ve lost this battle. This law, as Steve has explained, has passed. But it now goes to the Supreme Court. The Supreme Court has decided today that it will hear the petitions to override this law in September and it has chosen not to stop the law from going into effect. Until then there is no injunction against the Knesset to this or against the government, I should say.

But it will hear those petitions and so that will be the next clash point. But in the meantime, I think that the government parties—the coalition parties in the government will see this as the first victory of their majoritarian rule and start to push for additional steps. There’s a large menu of legislation lined up to curb the judiciary. The Knesset is in recess until October, but once that starts we should expect that some of those laws will be introduced.

Plus, the ultra-orthodox parties that are a critical part of this coalition did not really get much out of this first law. What they want is a law that will permanently exempt Yeshiva students from serving in the army, and that’s what they’re now lobbying for. And the settlers who are represented by these far-right ministers, Smotrich and Ben-Gvir, will be pushing for further steps for annexation of the West Bank, de facto annexation through legalization of illegal settlements illegal outposts, I should say—and expanding the existing settlements and so on.

So I’m afraid that what started as one minister referred to as a salad bar has opened, and now a full buffet is going to be put on display for the government. And that is going to create a(n) equal and opposite reaction from the opposition—secular opposition—and I’m afraid that rather than things calming down and some kind of compromise being fashioned during this time when the Knesset is on recess I think it’s just going to ratchet up even more, unfortunately.

SCHMEMANN: OK. We’ll have to keep an eye on that. Thank you, Martin.

And, Max, to you, you wrote in your recent Washington Post column that Israel’s number-one security threat comes from its prime minister, Benjamin Netanyahu. And you detailed implications of all of this for U.S.-Israel relations. What is the current state of U.S.-Israel relations? Obviously, there’s a special friendship. And what does this mean for—and also for Biden-Netanyahu relations?

BOOT: Those are all good questions. I mean, the three reasons why I argue that Netanyahu is the biggest security threat that Israel faces, one of them is certainly the impact he’s going to have or is already having on the U.S.-Israel relationship. The second, of course, is the impact that he’s having on Israeli democracy, which Martin and Steven talked about. And of course, the third is something we haven’t discussed yet, which is the way that his ultra-right-wing coalition is stirring up Palestinians in the West Bank and making—and increasing violence and making more likely the outbreak of a third Intifada. But let’s go back to the first part of it, which is the U.S.-Israel relationship.

I don’t think it’s going to have an immediate massive impact. I mean, clearly Biden is not happy with Bibi. And he tried to—you know, Biden tried to be a little bit more conciliatory last week by offering to meet with Netanyahu at some point, which he has not done to date. But even that phone call led to fallout with both sides giving kind of conflicting readouts of what happened, and the Biden White House being so unhappy with the way that Bibi was trying to spin it that they—that Biden invited Tom Friedman into the White House to make clear that he was opposed to the way Netanyahu was trying to slam through the judicial reform bill.

So, you know, I expect that we’ll have tense relationships between Biden and Netanyahu going forward. I don’t know what that’s going to mean in concrete terms because while there have been calls to limit or scale back U.S. military aid to Israel, including by Martin, which I think definitely needs to be on the table, there’s no indication that Biden himself is planning to go there. And, of course, part of why Netanyahu is willing to be so confrontational with Biden, as he was with Obama before him, is because he feels very secure in the backing that he has from Republicans on the Hill, who basically adopted an Israel right or wrong position. And they’re—most of the Republicans on the Hill are as indifferent to the menace that Netanyahu poses to Israeli democracy as they are to the menace that Donald Trump poses to U.S. democracy.

So, you know, I think for the immediate term the U.S.-Israel relationship will kind of continue as is. But I think what Netanyahu is really doing is he is leading to a longer-term erosion of American support for Israel. And you see it in polls with young people and Democrats both being much less pro-Israel than they were a few years ago. And of course, Biden is part of an older generation. He’s been, you know, pro-Israel for half a century or more. But younger Democrats don’t feel that same degree of emotional attachment to Israel. And I think, you know, Netanyahu is making—I mean, Bibi doesn’t seem to care about anything about his own—except his own political survival. But if you care about the future of Israel and the future of the U.S.-Israel alliance, I think Israel is heading in a very dangerous direction right now by aligning so closely with the MAGA wing of the Republican Party and alienating a lot of the other sectors of American public opinion. I think that’s going to be very bad for Israel down the road.

SCHMEMANN: OK. Thank you. At this point we will welcome questions from our participants. We’re going to give priority to members of the media. Please use the “raise hand” function, and when I call on you unmute yourself and introduce yourself. While we’re waiting for folks to queue up, I do want to acknowledge that our three panelists have been on the record criticizing this judicial reform proposal and have been also critical of Prime Minister Netanyahu. And I do want to note that Netanyahu and his allies have said that the overhaul is rein in activist judges. As they say, they’ve seized too much power and they’ve tied the hands of elected leaders. And that Prime Minister Netanyahu does have some support for his plan, including in quarters—in some quarters in the United States. So, Martin, just maybe a quick reaction to that. Is there a case to be made for this, or for a different version of it? Or is it as black and white as you’ve described?

INDYK: You know, Bibi is the master of spin. And he is doing his best to present this, especially to an American audience, as very reasonable. Had he wanted to pass a law that was reasonable—that’s a joke, because it’s a law about reasonableness—

COOK: We got it.

INDYK: Thank you. Had he wanted to do so, he could have easily done so. He could have modified it in a way that the opposition would have found acceptable, because there’s been some discussion over many years about whether there shouldn’t be some adjustment to this particular law about reasonableness. It’s a subjective category. It doesn’t have objective criteria. And so it was open to compromise.

But he instead allowed his hardline advocates of judicial reform—the justice minister, Yariv Levin, and the head of the judiciary committee—his name is Rothman—to force an extreme version of the law. And now he and his—Bibi and his spokesmen are saying that actually it’s just the slightest thing they could have done, the smallest legislation they could have done. But it’s not.

And this is not, you know, Martin Indyk, critic of Netanyahu, Anya. This is hundreds of thousands of Israelis in the streets who see this as a vital threat to Israel’s democracy. This is reservists, loyal patriots who have given their service to the country in wars, who are standing up and saying they’re not prepared to serve because of the extremism of this effort to curb the independence of the judiciary. So I think it should be seen in those terms.

SCHMEMANN: Thank you, Martin.

So I see a question from Judith Miller. Judith, please unmute yourself.

OPERATOR: Judith Miller, please accept the unmute-now prompt.

I think she’s having technical difficulties. We should move on.

SCHMEMANN: Yeah. While we’re waiting for Judy to figure that out, we do have a question in text sort of about the mechanics of this. If the Supreme Court sends back the law to the Knesset or outright strikes down the law, how does the ruling party respond? And what can they do to continue to advance their agenda from there?

Steven, do you want to take a stab at that one?

COOK: Well, I’m not a deep expert on the legal structures of the workings of the Supreme Court. But my—the political reaction will be immediate if the Supreme Court strikes it down. After all, this is precisely why the government has put forward this legislation, to rein in the Supreme Court. And this will be a perfect example of what they consider to be the Supreme |Court’s overreach.

That may or may not be true, but that’s certainly the way in which Netanyahu and the architects of this judicial overhaul, especially the minister of justice, will portray it. And I think that the—it’s clear that that would then result in large numbers of supporters of the government coming out into the streets.

Now, as you pointed out, Anya, in your question to Martin, there is a reservoir of support for the judicial reform. It may not be as big of the opponents of it. The polls would suggest that it is small. But it is not an insignificant number of people. And so I think that that’s one of the kind of impossible situations that the Supreme Court now finds itself in as it reviews this. It is unable to review this law based on the reasonableness doctrine.

They may find some other way in which it can review it and send it back to the Knesset or strike it down. But it then puts it in this terrible position with whatever it does is going to create some type of very significant political reaction that’s going to end up in the streets. The Israelis are now negotiating. They’re now having a national debate in the streets. And it’s not about just the judicial reform. It is, as Martin intimated, about questions concerning identity, the question of Israeli democracy, how the country—how religion relates to the country and broader Israeli society. So striking this down is going to just deepen divisions and produce more of what we’ve seen, but perhaps more intense. Apologies for not knowing precisely the mechanics of it, however.

I think Martin—

SCHMEMANN: So we have another—

INDYK: Another thing to add there that’s important is that it could well provide the next legislation, which would be the override legislation, which would take away the Supreme Court’s ability to override. And the Supreme Court may be reluctant to provoke that kind of confrontation.

SCHMEMANN: So thank you, Martin. And we have another question about process, so let’s continue this conversation.

Under the assumption that Bibi himself understands the downsides of proceeding—big assumption—is there any conceivable exit routes over the Knesset recess that may enable this episode to come to a close? What is the endgame for him?

And then, Max, the second part of that question is, what can the U.S. do to support compromise efforts? But first to you, Martin.

INDYK: I wish there was a reason to be hopeful that some kind of compromise could be fashioned. Remember that this was tried under the auspices of President Herzog at his home several months, and it broke down. That was not surprising, and it tells you a lot about why compromise is not going to happen as we go forward. It’s because there is no room for compromise on either side. Netanyahu, as we’ve already discussed, has been taken hostage by the far right. Now the ultra-religious are demanding their due. And the result of that is that he has no room to maneuver. If he wants to survive politically, which is his, I think, only objective at this stage, then he will have to go along with that.

And on the other side, the opposition leaders, Benny Gantz, Yair Lapid, and so on, similarly have no room to compromise. They don’t lead the opposition in the streets. And they will be very wary about trying to put forward compromises, especially with Netanyahu, who has lost all trust by the opponents of his legislation reform—judicial reform, I should say. And so they will fear to compromise as well. So unfortunately, I don’t see that there’s a way out of this crisis through reasonable people sitting down and working out reasonable solutions. Regrettably, the time seems to have passed for that, and we are likely to sink further into—or, fall, is a better word—fall further into the abyss.

SCHMEMANN: And, Max, anything the U.S. can do to nudge this in a positive direction?

BOOT: I don’t think so at this point. I mean, I think Biden has tried everything. I mean, he’s made clear that, you know, Netanyahu should not rush this through. And, you know, he tried—he’s tried to support President Herzog, who’s been kind of a reasonable figure. Tried to forge a moderate solution, as Martin suggested. And that’s gone nowhere. I mean, at this point I really—I think Martin is right. It’s too late. It’s not—there’s really no room for compromise, and really almost nothing that the U.S. can do.

And so, I mean, you know, if we start talking now about—we could certainly start talking now about reducing U.S. aid to Israel, which, I think, is a legitimate topic of discussion. But I don’t think that’s going to dissuade Netanyahu. It’s just going to—you know, the ultra-right, it’s just going to get their backs up, and they’re going to thunder on about how they’re not going to be blackmailed by the United States and so forth. So this may be the right thing to do for the long-term reset of the U.S.-Israel relationship, but I don’t think it’s going to achieve very much in terms of the current outcome in the Knesset and with the judicial bill.

INDYK: I’d just add something on this, Anya, because I think it’s an interesting but complicated twist. At this very moment, President Biden and his advisors are negotiating a package deal that would produce a breakthrough to full peace between Israel and Saudi Arabia. And what would follow from that is peace with much of the Arab and Islamic world. And the Saudi crown prince has a tall order of requirements that he wants from the United States. He has told both Israel and the United States that he doesn’t care much for the Palestinians, although his foreign minister says the opposite publicly, that there will have to be at least significant progress towards a Palestinian state before this happens. But that’s not what MBS is saying in private.

But Biden has the opportunity, since the bill is being presented to him, to present a bill to Netanyahu and the bill is for the Palestinians, and if he focuses the requirements in this package deal of no annexation—no de facto annexation, territory for the Palestinians from the Area C that’s completely controlled by Israel and the West Bank those kinds of territorial issues in this package he can present the Israeli public in the midst of this judicial crisis with a choice that the United Arab Emirates presented Israel with a choice before the Abraham Accords went through, which was you can have annexation or you can have peace and normalization but you can’t have both.

And President Biden can put that question before the Israelis through this way. You can have peace with Saudi Arabia and potentially the whole Arab and Muslim world or you can have annexation, the agenda of the far right of the settlers, but you can’t have both. And in that way, the far-right members of the Israeli government will have to decide whether they’re ready to accept those terms or whether they’re ready to bring the government down.

COOK: If I can just get my two cents in here. I don’t think that the far right members of the government really care about normalization with Saudi Arabia. I think that they’ve made their decision. We’ve already seen hundreds of thousands of Israelis in the streets over many, many months.

It’s extraordinary how little leverage or influence the United States has in this situation and it’s the same thing with regard to Israel’s friends in the Arab world now how little leverage they have because the people who are in the driver’s seat here care less about normalization and more about annexation, more about changing the status of the Ḥaram al-Sharīf, the Temple Mount, more about what their parochial agendas are than normalization.

So while Martin’s, I mean, articulating is elegant and would seem to move many people in one direction and, in fact, may isolate these right-wing members of the government, all of their incentives are not to bring down the government because they’d never get elected again.

SCHMEMANN: I’m glad we—

INDYK: Netanyahu has to make a choice and the people of Israel has to make a choice what they care about, settlements or peace.

SCHMEMANN: Let’s see if we can bring Judith Miller back.

Judy, have you figured out your unmute button?

Q: I hope so. Thank you.

COOK: We can hear you, Judy.

Q: There for about a nanosecond. (Laughs.)

This has been really fascinating, if utterly depressing. I was going to ask the Saudi question but now I’m going to pivot and ask about the corruption trial of Bibi, whether or not that can play any role in changing his personal calculations? Secondly, whether or not the reservists’ threat or not to show up in the army is likely to have a role? And, finally, if the Supreme Court decides in October that this law is not constitutional, what then?

Sorry about the three questions, but they’re all short. Thank you. (Laughs.)

SCHMEMANN: So since we’re short on time, let’s divvy up those three questions among our three panelists. So, Max, the looming trial; Steven, reservists; and Martin, the Supreme Court. And then we will wrap it up with apologies for those who have questions.

Max, you start.

BOOT: I mean, I’m actually not enough of an expert on Israeli legal procedure to know what—I mean, the trial has been going on. It’s in recess in August. I think it’s going to be back in September.

It just seems like it’s a never-ending trial but—and Netanyahu claims that he’s not going to try to use these new powers to try to short circuit the trial. That remains to be seen. But I defer to Martin and Steven on the actual mechanics of the trial.

SCHMEMANN: OK. Steven, to you next.

COOK: On the question of reservists, certainly this is unprecedented in Israelis’ seventy-five-year history that their reservists are declaring that they will not show up for reserve duty. And, of course, there’s nothing really to compel them other than their sense of duty here. And since the government is undermining the principles on which they have, you know, sworn to protect the Israeli government, we could see a significant number of people stepping out. That, according to security experts, could have an impact on Israel’s ability to take the initiative against its enemies in order to respond to its adversaries.

Of course, I think if the Israelis were attacked by Hezbollah, or there were rockets landing in Jerusalem from the Gaza Strip, I find it difficult—maybe it’s my lack of imagination—I find it difficult to believe that large, large numbers of reservists aren’t going to show up for duty. But what we’re seeing right now is Israel’s adversaries actually, after a period of months in which they have done much to provoke the Israelis, are actually quite quiet because they perceive the Israelis undermining their own cohesion, their own ability to defend themselves through this kind of misbegotten judicial reform that is really tearing at the threads of Israeli society. The idea—if it’s truly a national institution in which people are melded together, the end of that is—would be a fundamental change in not only Israeli politics and security policy, but Israeli society, given how important the IDF has been over these many, many years.

SCHMEMANN: We’re going to continue just for a couple of minutes. Max, I know you had another engagement, so if you need to sign off, that’s fine, of course. But, Martin, we’ll give you the last word here on Judy’s last question. We also did get a question in the chat, which you addressed earlier, but a question about settlement expansions and new outposts until the Supreme Court raises this in the fall.

But, Martin, last word to you.

INDYK: Thank you, Anya. Well, as I mentioned before, if the Supreme Court intervenes and nixes this law that has just been passed, it, I believe, will provoke the government to advance other parts of the legislation, particularly the override clause legislation, which would remove the Supreme Court’s ability to override the ability of the Knesset to pass laws. And that would, in effect, gut the Supreme Court of any oversight capability when it came to legislation. And so I think that, as a result, they—the Supreme Court may be reluctant to provoke that. We will have to see how it plays out.

One way or another, what the Supreme Court does on this—in this particular instance I don’t think is going to stop the effort to gut it of its independence, in one way or another. And so I think that, you know, they’ve got to decide. They’ve got a difficult choice between hanging now or hanging later, as it were.

The overall situation when it comes to Netanyahu’s court case, when it comes to the issue of the reservists, and the changing of the nature of the IDF I think just all serves to underscore how fraught this whole issue has become, where the opponents of judicial change are convinced that Netanyahu intends to stack the Court, sack the attorney general, and appoint an attorney general that will dismiss the charges. Regardless of what he says or what he intends to do, that is an operating assumption that is fueling the opposition. And what’s happening to the army is, as Steve says, undermining the basic role of the IDF as the people’s army. And if the legislation that prevents for all time Yeshiva students from having to serve in the army, then that’s just going to further undermine another institution of the state that’s been so critical to Israel’s social integration and unity. So that is why I feel that this is a very dark day for Israel and a very momentous time in its history, unprecedented and deeply disturbing.

SCHMEMANN: All right. Well, a concerning situation that we will keep an eye on.

Gary, I do see your hand. Send me an email with your question and I will get it answered for you.

For everyone else, this was an on-the-record conversation. We will be posting video and transcript on CFR’s website following this. We also have many additional resources about the situation in Israel from these panelists and from our other experts. You can find that all at CFR.org.

And with that, I would like to thank our three distinguished panelists: Max Boot, Steven Cook, and Martin Indyk. Thank you for spending the time with us today. And we wish you all a pleasant afternoon. Thank you.

COOK: Thank you. Have a good one.

INDYK: Thank you.

(END)

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