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Israeli democracy may not survive a ‘reform’ of its Supreme Court

(JTA) — On Dec. 29, Israel swore in Benjamin Netanyahu’s sixth government. The Likud leader became Israel’s prime minister once more, and one week later, Israel’s long-anticipated judicial counterrevolution began.

In the Knesset Wednesday, newly minted Justice Minister and Netanyahu confidant Yariv Levin unveiled a package of proposed legislation that would alter the balance of power between Israel’s legislature and its Supreme Court.

At the core of this plan is a bill to allow the Knesset to override the Supreme Court. Levin’s proposals — which almost certainly have the immediate support of a Knesset majority, regardless of Levin’s assurances that they would be subject to “thorough debate” — would pave the way for Israel’s new government to pass legislation that curtails rights and undermines the rule of law, dealing a blow to Israeli democracy.

The dire implications of this proposed judicial reform are rooted in key characteristics of the Israeli political system that set it apart from other liberal democracies. Israel has no constitution to determine the balance of power between its various branches of government. In fact, there is no separation between Israel’s executive and legislative branches, given that the government automatically controls a majority in the parliament. 

Instead, it has a series of basic laws enacted piecemeal over the course of the state’s history that have a quasi-constitutional status, with the initial intention that they would eventually constitute a de jure constitution. 

Through the 1980s, the Knesset passed basic laws that primarily served to define state institutions, such as the country’s legislature and electoral system, capital and military. In the 1990s, there was a paradigm shift with the passage of two basic laws that for the first time concerned individuals’ rights rather than institutions, one on Human Dignity and Liberty (1992) and the other on Freedom of Occupation (1994). These laws enshrined rights to freedom of movement, personal freedom, human dignity and others to all who reside in Israel. 

Aharon Barak, the president of Israel’s Supreme Court from 1995 to 2006, argued that these laws constituted a de facto bill of rights, empowering the court to review Knesset legislation and to strike down laws that violate civil liberties, a responsibility not explicitly bestowed upon the court in the basic law pertaining to the judiciary. In 1995, the Supreme Court officially ruled that it could indeed repeal legislation that violates the country’s basic laws, heralding an era of increased judicial activism in Israel in what became known as the “judicial revolution.” The court has struck down 20 laws since, a fairly modest number compared to other democracies.

The judicial revolution of the 1990s shifted the balance of power in Israel’s political system from one of parliamentary sovereignty, in which the Knesset enjoyed ultimate power, to one in which the legislature is restricted from violating the country’s (incomplete) constitution. Israel’s Supreme Court became a check on the legislative branch in a country that lacks other checks and balances and separations of power.

As a result of these characteristics, the Supreme Court currently serves as one of the only checks on the extraordinary power of Israel’s 120-member Knesset — which is why shifting that balance of power would have such a dramatic impact on Israel’s democracy.

Levin’s proposed judicial overhaul includes several elements that would weaken the power and independence of Israel’s Supreme Court. The plan includes forbidding the Supreme Court from deliberating on and striking down basic laws themselves. It would require an unspecified “special majority” of the court to strike down legislation, raising the threshold from where it currently stands. 

Levin has also called for altering the composition of the selection committee that appoints top judges to give the government, rather than legal professionals, a majority on the panel. It would allow cabinet ministers to appoint legal advisors to act on their behalf, rather than that of the justice ministry, canceling these advisors’ role as safeguards against government overreach. Should a minister enact a decision that contravenes a basic law, the ministry’s legal advisor would no longer report the violation to the attorney general, and would instead merely offer non-binding legal advice to the minister. 

The pièce de résistance is, of course, the override clause that would allow the Knesset to reinstate laws struck down by the Supreme Court by 61 members of Knesset, a simple majority assuming all members are present. The sole restriction on this override would be a provision preventing the Knesset from re-legislating laws struck down unanimously, by all 15 judges, within the same Knesset term. 

This plan’s obvious and most immediate result would be the effective annulment of the quasi-constitutional status of Israel’s basic laws. If the Knesset’s power to legislate is no longer bound by basic laws, these de facto constitutional amendments no longer have any teeth. There are no guardrails preventing any Knesset majority from doing as it wishes, including violating basic human rights. The Knesset could pass laws openly curtailing freedom of the press or gender equality, for example, should it choose to do so.

This counterrevolution, in effect, goes further than merely undoing what occurred in the 1990s.

Most crucially, the Knesset that would once again enjoy full parliamentary sovereignty in 2022 is not the Knesset of Israel’s first four decades. Shackling the Supreme Court is essential to the agendas of the new government’s various ultra-right and ultra-religious parties. For example, the haredi Orthodox parties are eager to re-legislate a blanket exemption to the military draft for their community, which the court struck down in 2017 on the grounds that it was discriminatory. They also have their sights on revoking recognition of non-Orthodox conversions for immigrants to Israel, undoing a court decision from 2021

The far-right, Jewish supremacist parties of Bezalel Smotrich and Itamar Ben-Gvir, meanwhile, see an opportunity to deal a decisive blow to an institution that has long served as a check on the settlement movement. They hope to tie the court’s hands in the face of oncoming legislation to retroactively legalize settlements built on private Palestinian land, which are illegal under Israeli law. But this is only the beginning: Neutering the authority of the court could pave the way for legal discrimination against Israel’s Arab minority, such as Ben-Gvir’s proposal to deport minorities who show insufficient loyalty. 

The timing of Levin’s announcement Wednesday could not be more germane. The Knesset recently amended the basic law to legalize the appointment of Aryeh Deri, the Shas party leader who is serving a suspended sentence for tax fraud, as a minister in the new government. The Supreme Court convened Thursday morning to hear petitions against his appointment from those arguing that it is “unreasonable” to rehabilitate Deri given his multiple criminal convictions, a view shared by Israel’s attorney general. Levin’s proposals would bar the court from using this “reasonability” standard. 

The Israeli right has long chafed at the power of the Supreme Court, which it accuses of having a left-wing bias. But a judicial overhaul like this has never enjoyed the full support of the government, nor was Netanyahu previously in favor of it. Now, with a uniformly right-wing government and Netanyahu on trial for corruption, the prime minister’s foremost interest is appeasing his political partners and securing their support for future legislation to shield him from prosecution.

In a system where the majority rules, there need to be mechanisms in place to protect the rights of minorities — political, ethnic and religious. Liberal democracy requires respect for the rule of law and human rights. Yariv Levin’s proposals to fully subordinate the Supreme Court to the Knesset will concentrate virtually unchecked power in the hands of a few individuals — government ministers and party leaders within the coalition who effectively control what the Knesset does. That those individuals were elected in free and fair elections is no guarantee that the changes they make will be democratic. 


The post Israeli democracy may not survive a ‘reform’ of its Supreme Court appeared first on Jewish Telegraphic Agency.

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How a Jewish, German-averse writer came to love Berlin

Berlin Before and After: A Cautionary Mirror for Our Times
By Wendy Lesser
Harper, 352 pages, $32

For years, Wendy Lesser was a proud, Germany-avoiding Jew with what she calls “an ingrained distaste for the nation that gave rise to the Third Reich.” Then, in 2003, Lesser, founder and editor of The Threepenny Review and a prolific critic and author, was the recipient of a fellowship from the American Academy in Berlin. Those few months in residence started her love affair with that history-embattled city, where she now returns regularly and feels surprisingly at home.

“One of the things I discovered, when I eventually got to Berlin,” she writes in her latest book, Berlin Before and After, “was how deeply Jewish that city’s culture still is. Or…how thoroughly the German and Jewish cultures at one time entered into each other, so that the versions we now have of them…are still colored by that mutual infusion.”

Berlin Before and After is Lesser’s highly idiosyncratic, selective take on the city — as much travelogue as cultural history. Its subtitle, A Cautionary Mirror for Our Times, evoking the civil rights abuses of the Trump era, reveals something of its raison-d’être. But Lesser doesn’t belabor the comparison, by now a cliché of American political discourse. She is at least as interested in the diverse artistic pleasures of contemporary Berlin as in the historical shadows that shape its landscape and personality.

The conceit of the book is simple: Lesser begins with an admiring look at Berlin in the year 1929, which she defines as “the last year in which it was possible to turn a blind eye” to impending disaster. “Runaway inflation, widespread economic despair, and violent social unrest were just around the corner,” she writes, “but they were invisible to most people.”

Lesser skips over the rise of the Third Reich, the Holocaust and the devastation of World War II and resumes her narrative in the contemporary city, with its wealth of museums, memorials and other cultural attractions. An aficionado of Berlin’s public transit, she ends, somewhat bizarrely, by taking readers on an extended bus ride across the city.

Lesser’s book is subtitled ‘A Cautionary Tale for Our TImes.’ Courtesy of HarperCollins

Some of the greatest achievements of the Weimar period, she argues, date to 1929. Lesser proceeds chronologically but also associatively, touching on architectural treatises, novels (including Alfred Döblin’s Berlin Alexanderplatz, Erich Maria Remarque’s All Quiet on the Western Front and Vicki Baum’s Grand Hotel), and the photography, paintings, silent film, dance and theater of the era. Though her focus isn’t political, she lauds the achievements of chancellor and, later, foreign minister Gustav Stresemann. She also remarks on the celebrity of Albert Einstein, one of the many German Jewish scientists and intellectuals who eventually found refuge in the United States.

In the section “Berlin Now,” Lesser is concerned with the impacts of two separate, but related traumas: the Nazi era and the Cold War, epitomized by the Berlin Wall dividing the city into east and west. Berlin’s intense memorial landscape has by now been the subject of countless articles and books, but that doesn’t impede Lesser from digging in.  “Berlin is the companion who never shuts up, and what it wants to tell you about is itself,” she writes. The city “lives on a daily basis with its history in a way that is true of no other place I know.”

Lesser is right on the big picture. But her patience for dissection of both the history and its memorialization is limited. She rushes through the Topography of Terror museum (admittedly, a heavy lift), built on the site of Gestapo and SS headquarters and the Reich Security Main Office. She has little to say about the German Resistance Memorial Center, another site-specific museum, located in the military headquarters where the failed July 20, 1944, assassination plot against Adolf Hitler was planned. And she contemptuously dismisses what she calls “the self-glorifying architecture” of Daniel Libeskind’s generally acclaimed Jewish Museum Berlin in a single paragraph, without any reference to the many important shows it has mounted over the years or to its revamped (in 2020) core exhibition.

Nor does Lesser explicitly consider the notion of the “counter-memorial” — those self-effacing monuments that serve as a critique of more conventional, celebratory memorials. She nevertheless describes several of them. Among the earliest is Bibliothek, the underground “empty library” memorial on Bebelplatz, commemorating the 1933 book burnings that took place there. She visits Peter Eisenman’s vast, unmissable (and controversial) Memorial to the Murdered Jews of Europe, but makes no mention of its excellent underground museum. She examines the now ubiquitous Stolpersteine (Stumble-Stones), recording the last known residences, deportation dates and fates of Berlin’s Jewish residents, and Renata Stih and Frieder Schnock’s Places of Remembrance, whose playful signs attached to lampposts catalog the plethora of anti-Jewish ordinances enacted by the Third Reich.

She also covers memorials to Germany’s division, including remnants of the Wall, the Stasi Museum, the Spandau Zitadelle (with its collection of “toxic monuments”) and the gruesome Hohenschönhausen Prison, whose brutal past clearly captures her imagination.

Berlin’s greatest draw for Lesser is arguably its culture, though it, too, is inseparable from history. She delves into the art of Gerhard Richter, the music of the Russian-born conductor Vladimir Jurowski, the television series Babylon Berlin, and the literature and film of East Germany.

The resulting narrative is an intellectual potpourri, probably most engaging to those who know Berlin (but not too well) or who might be contemplating a visit. Lesser follows her own wide-ranging curiosity and assumes that we’ll tag along. “Viscerally and consciously, with a kind of self-awareness that is rare in a collective entity,” she writes, radiating enthusiasm, “Berlin has continued to reveal itself to me in ways I never cease to find moving.”

The post How a Jewish, German-averse writer came to love Berlin appeared first on The Forward.

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What Black voters can teach Michigan Jews about Abdul El-Sayed

Jewish Democrats in Michigan face a tough choice. They can vote for Abdul El-Sayed, a candidate whose views clash with their own, or withhold their support for the Democratic candidate for senator in a razor-close election that may determine which party controls the Senate.

In a race where a single percentage point separates the two candidates, and in which Jews make up 1.4% of the electorate, every Jewish vote counts. That’s why it’s instructive to look at the history of another minority voting bloc — Black Americans.

Black Americans have faced a version of the El-Sayed dilemma for a century: Should they support a candidate who is imperfect or even hostile on issues they care about intensely, or hold their noses, be pragmatic and vote for the larger prize of institutional power?

Black Americans “don’t have the luxury of picking a candidate who is purely for their interests,” Sam Fulwood III, a Pulitzer Prize-winning journalist who specializes in race and public policy, told me in a phone interview. “I don’t think there’s ever been a moment in history where there’s been a pure choice.”

I get why so many Michigan Jewish voters see El-Sayed as the ultimate “impure” choice. He said he’d cut off both offensive and even defensive military aid to Israel. He called the Israeli government evil, comparing it to Hamas. He has campaigned with Hasan Piker, the influencer who called Israel “the Jewish ISIS” and said that American Jews bring violence on themselves by supporting Israel.

Amid a storm of criticism and calls to distance himself from Piker, El-Sayed reiterated his support for Jews. “I love and revere Judaism and the Jewish people,” he said.

At the same time, El-Sayed’s progressive stances on health care, education and economic justice and even his sharp criticism of the Israeli government have resonated with some Jewish voters.

Others have been satisfied by his pledges to fight antisemitism and his call for a solution to the Israeli-Palestinian conflict that, in his words, guarantees equal rights “for Palestinians and Jewish Israelis alike.”

“So many young Jewish people are active in Abdul’s campaign, and it’s their Judaism that leads them to that position,” said former U.S. Rep. Andy Levin, a self-described Zionist.

Many Michigan Jewish Democrats remain unconvinced. Just before the High Holidays, dozens of Michigan rabbis and Jewish leaders signed onto a list of “non-negotiable” principles about Jewish safety and Israel that any candidate hoping to earn their support must espouse. The petition, called Non-Negotiable Michigan, didn’t name El-Sayed directly, but it’s clear he was its target.

Ultimatums cut both ways. In setting terms for El-Sayed Jewish leaders have created one for themselves. Elections, despite what we learned in high school, aren’t popularity contests. A vote isn’t an approval. It’s a choice.

The Democratic Jews on the fence over El-Sayed may ultimately be faced, come November, with the prospect of an imperfect candidate representing a wing of the party they fear, versus two more years of a Republican majority that will continue to rubber-stamp the Trump administration’s damage to the economy, democracy, the environment, the social safety net, health care and immigrant rights.

If the choice is novel for many Jewish Democrats, it’s old news for Black Americans.

The dilemma goes back at least as far as the 1936 election, when Black voters shifted to the Democratic Party to vote for Franklin D. Roosevelt, even though FDR, fearful of losing Southern support, repeatedly refused to support federal anti-lynching legislation.

Or consider Lyndon Johnson. In 1957, Johnson, then Senate Majority Leader, stripped the enforcement teeth out of that year’s Civil Rights Act to get it passed, bypassing the objections of civil rights leaders. Seven years later, after Johnson became president and signed the Civil Rights Act, Black voters delivered him about 94% of their vote — despite a legislative record on civil rights that had been mixed at best.

Even more recently, Black voters have had to sacrifice the perfect for the good, supporting Hillary Clinton despite the impact of Bill Clinton’s 1994 crime bill that contributed to mass incarceration.

In all these cases, Black voters didn’t overlook or excuse these records. Instead, they made a strategic calculation to focus on the bigger goals, realizing politicians are often imperfect vehicles to get us there.

“Black Democrats have overlooked differences in the Democratic Party and even overlooked prejudice because they knew the Democratic Party was much better than the alternative,” Ada Horwich, a longtime Democratic Jewish activist in Los Angeles told me. “We need to learn from their political behavior.”

Perhaps the best example, Fulwood reminded me, was John F. Kennedy, who saw the civil rights movement as a domestic distraction. But in 1960, after Martin Luther King Jr. was jailed, Kennedy privately — so as not to offend Southern Democrats — called Coretta Scott King to offer support, while his brother Robert worked behind the scenes to secure King’s release. That persuaded King’s father, King Sr., to throw his considerable electoral influence behind the Democrat.

“He took a lot of Black voters with him,” said Fulwood, “even though Kennedy was not great.”

Fast-forward to 1963, and JFK came around to support the movement.

“It’s a difficult thing,” King Jr. said at the time, “to teach a president.”

One lesson is that politicians are teachable. Stances that seem “non-negotiable” now can change.

That mixture of cold calculation and hope is exactly what this election is asking Jewish Michiganders to negotiate. Or, as Fulwood said of so many electoral choices Black Americans have faced, “One candidate is very bad, and one is less bad.”

The post What Black voters can teach Michigan Jews about Abdul El-Sayed appeared first on The Forward.

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South Florida Democrat Moskowitz airs campaign ad targeting antisemitism with concentration camp footage

(JTA) — South Florida U.S. Rep. Jared Moskowitz pulled on his family’s story as Jews in the Holocaust in a campaign ad targeting antisemitism, as he strives to retain his seat in the November general election.

“In every generation, they rise against us,” the Jewish incumbent says in the ad over a background of somber music and black-and-white photos from a concentration camp. “My great-grandparents were murdered in Auschwitz.”

“In our generation, right here, the Parkland shooter had swastikas carved into his gun,” he continues, standing in front of Marjory Stoneman Douglas High School, referring to the 2018 fatal shooting that killed 14 students and three educators.

Moskowitz, a top Democratic supporter of Israel in Congress, who fended off progressive challenger Oliver Larkin in a heated August primary, emphasizes in the ad that he has worked to fight antisemitism through bipartisan laws. Some of this legislative action has involved increasing security at synagogues and Jewish nonprofits and expanding education to reduce hate crimes.

“Never again is now,” Moskowitz concludes.

Moskowitz won the August primary with 63.5% of Democratic voter support, to Larkin’s 36.5%. But Larkin was vocal throughout the race about his opposition to arms sales to Israel, going so far as to label the country as a “religious supremacist” nation.

As Moskowitz prepares to face former Boca Raton Mayor Scott Singer, a Republican who is also Jewish, the Democrat may be facing a tight race in a region that had previously been solidly blue.

The 25th Congressional District, which includes parts of Delray Beach, Boca Raton and Miami Beach, is about 25% Jewish, according to local estimates.

Yet recent redistricting efforts have transformed the region into territory that President Donald Trump would have likely won in the 2024 elections. In fact, the Cook Political Report declared a shift from “solid D” to “toss up.”

“There’s no doubt that the race for the new 25th District will be highly competitive in a favorable environment for Democrats,” the report stated.

Moskowitz’s team emphasized the “deeply personal” nature of the congressman’s battle against antisemitism, in a statement issued alongside the ad’s release. He is confronting this challenge, his team explained, by “connecting his family’s experience during the Holocaust to the hatred that continues to threaten our communities today.”

While Moskowitz’s great-grandparents died in Auschwitz, his grandparents were able to escape Europe right before the war. His grandmother left on the Kindertransport, an organized effort that rescued Jewish children from Nazi-controlled territories beginning in 1938.

By Tuesday evening, the Google Ads Transparency Center, which includes data on YouTube ads, did not yet reflect how much money the campaign had spent on its ads there. Meta’s Ad Library also did not yet have data as to how much had been spent on the Facebook version of the ad posted there.

Stephen Sussman, a professor of public administration at Barry University, told the Jewish Telegraphic Agency that although “Holocaust imagery should never become routine campaign material,” he doesn’t believe that this ad has crossed a line.

“The Holocaust was, of course, a real event that continues to shape Jewish life and memory,” Sussman said, recognizing that Moskowitz’s great-grandparents were murdered at Auschwitz and that many Jews today feel threatened by antisemitism.

“He is not comparing his opponent to Hitler or using the Holocaust to make an unrelated political attack,” Sussman added.

The professor also noted the ad’s direct connections to the congressman’s record, such as his leadership in passing bipartisan legislation on antisemitism awareness and in boosting funding for synagogue security.

Sussman acknowledged that when Holocaust imagery becomes part of a campaign, there “is a legitimate concern” that other people might deploy that imagery less responsibly. But he stressed that given Moskowitz’s history and work record, as well as the current political climate, this particular ad is “powerful but defensible.”

Ken Goldstein, a politics professor at the University of San Francisco, offered a similar perspective, explaining that of the thousands of ads he has watched in his lifetime, he found this one to be powerful but not particularly controversial.

“He was certainly using pictures of the Holocaust, jarring images, but they were his family’s story,” said Goldstein, who is an expert on the impacts of political advertising.

“I don’t think he’s using it to personally attack anybody else except the Parkland shooter,” he added, noting that the ad isn’t being used to attack an opponent. “This one does not strike me as particularly harsh, unfair, or out of bounds at all.”

This article originally appeared on JTA.org.

The post South Florida Democrat Moskowitz airs campaign ad targeting antisemitism with concentration camp footage appeared first on The Forward.

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