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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.
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What if Donald Trump puts his name on the US Holocaust Memorial Museum?
What if I told you that this morning, I found the following Truth Social post on my newsfeed?
“THE TRUMP US HOLOCAUST MEMORIAL MUSEUM HONORS will be broadcast tonight, on CBS, and Stream on Paramount+. Tune in at 8 P.M. EST! At the request of the Board, and just about everybody else in America, I am hosting the event. Tell me what you think of my “Master of Ceremony” abilities. If really good, would you like me to leave the Presidency in order to make “hosting” a full time job? We will be honoring true GREATS in the History of the Holocaust, from the Elders of Zion and the NSDAP to John Birchers and Groypers. THANK YOU FOR YOUR ATTENTION.”
If you said this post wasn’t real, you would be right. If you said that I tweaked a recent Truth Social post, swapping the US Holocaust Memorial Museum for the former John F. Kennedy Memorial Center for the Performing Arts, you would be right about that too.
But if you said that this post was unthinkable, my response would be “Think again.”
The phrase “Thinking the unthinkable” was all the rage in the late 1950s and early 1960s. It was an era darkened by the threat of mushroom clouds, the theatrics of Peter Sellers in Stanley Kubrick’s film Dr. Strangelove, and the theories of Herman Kahn, whose notion of the Doomsday Machine features in Kubrick’s masterpiece. Kahn coined the term “unthinkable,” insisting that while “nuclear war may seem highly unlikely, indeed unthinkable, to many people — it is not impossible.”
To this very day, the threat of a nuclear holocaust remains all too real and thinkable. But it has been sidelined by a different kind of threat, one that has buried the very concept of the unthinkable.
So many words and acts once considered unthinkable have, under the two Trump presidencies, become not just thinkable and not just doable, but also increasingly unremarkable. Is there any word or act we still consider safely and surely unthinkable? Is there anything at all that, to quote Herman Kahn, while it may seem highly unlikely, indeed unthinkable, to many people — is not impossible?
To find an answer, it helps to suggest a limiting case on our government’s effort to make all things thinkable, and thus acceptable, even normal. Consider the fake post with which I began this column — namely, that Donald Trump would one day plaster his name on the building that houses the United States Holocaust Memorial Museum. Can there be anything more unthinkable than Trump stamping his name on the USHMM, the very institution that is dedicated to reminding the world of the consequences of acting on the unthinkable?
In his reflections on life under totalitarian rule, The Captive Mind, Polish poet and Nobel Prize Laureate Czeslaw Milosz observed that all “concepts men live by are a product of the historic formation in which they find themselves. Fluidity and constant change are the characteristics of phenomena. And man is so plastic a being that one can even conceive of the day when a thoroughly self-respecting citizen will crawl about on all fours, sporting a tail of brightly colored feathers as a sign of conformity to the order he lives in.”
We see such plasticity on the sets of Fox News, the corridors of Congress and in the board rooms of media, legal, and tech titans where talking heads, politicians and CEOs happily crawl about with many-colored tails of feathers. This is also true in the board rooms of the Donald J. Trump and John F. Kennedy Memorial Center for the Performing Arts and the Donald J. Trump Institute of Peace. (The names of these sites must be written in full to fully grasp the absurd character of this era.)
But the United States Holocaust Memorial Museum will always be exempt from this creeping rot of the absurd, right?
Wrong.
In early May, the USHMM, which like the Donald J. Trump and John F. Kennedy Memorial Center for the Performing Arts is both privately and federally funded, announced an overhaul of its board. Nearly all its Biden-appointed members were fired, replaced by a choice assortment of Trump appointees. They include Sid Rosenberg, a conservative talk-show host who spoke at a Trump rally last year, denouncing the Democrats as “a bunch of degenerates.”
Another Trump appointee, Martin Oliner, published an op-ed in The Jerusalem Post earlier this year in which he called for the forcible removal from Gaza of Palestinians, whom he described as “fundamentally evil.” In another piece, titled “Make the Holocaust Memorial Council Great Again,” he warned that the USHMM was not meeting its “important role.”
Equally troubling was this fall’s temporary closing until next February of the museum exhibit dedicated to America’s wartime response to the Holocaust. The ostensible reason was to “upgrade the exhibit,” an Orwellian phrase that some staffers fear means the blurring the historical record, one that includes the disinterest of the White House, the fecklessness of most Jewish leaders, and the polite, yet potent antisemitism at the State Department.
In his landmark work The Abandonment of the Jews, the historian David Wyman offers a similar conclusion on the American public’s response to the Holocaust: “Few American non-Jews recognized that the plight of the European Jews was their plight too. Most were either unaware, did not care, or saw the European Jewish catastrophe as a Jewish problem, one for Jews to deal with. That explains, in part, why the United States did so little to help.”
Is it possible that because too many of us remain unaware of or indifferent to the Trump administration’s abandonment of the unthinkable, we have invited the catastrophe now enveloping our nation? A catastrophe that already announces itself in the mass and often violent arrests and deportations of men and women because of their skin color? In the lawless killing of civilians in international waters? In the unconstitutional deployment of the National Guard in our cities? For those who do not yet have an answer, it is worth giving the matter a bit of thought — even if you find those thoughts unthinkable.
The post What if Donald Trump puts his name on the US Holocaust Memorial Museum? appeared first on The Forward.
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Israel becomes first country to recognize Somaliland, drawing condemnation from Egypt, Turkey and Somalia
Israel became the first country to formally recognize Somaliland, a self-declared sovereign state in the Horn of Africa, in a decision that was immediately condemned by Somalia and other nations.
“The Prime Minister announced today the official recognition of the Republic of Somaliland as an independent and sovereign state,” wrote Prime Minister Benjamin Netanyahu’s office in a post on X. “The State of Israel plans to immediately expand its relations with the Republic of Somaliland through extensive cooperation in the fields of agriculture, health, technology, and economy.”
Somaliland’s president welcomed the announcement from Netanyahu in a post on X, adding that he affirmed the region’s “readiness to join the Abraham Accords,” the normalization agreements between Israel and a handful of Arab states that was brokered during President Donald Trump’s first term.
Somaliland proclaimed independence from Somalia in 1991 during the country’s civil war, but has failed to receive recognition from the international community in part due to Somalia’s opposition to its secession. Somalia officially rejects ties with Israel, and has consistently refused to recognize the state of Israel since 1960. Somalia and Somaliland are overwhelmingly Muslim.
“The ministers affirmed their total rejection and condemnation of Israel’s recognition of the Somaliland region, stressing their full support for the unity, sovereignty and territorial integrity of Somalia,” Egypt’s foreign ministry said in a statement following a phone call between Egypt’s foreign minister and his Somali, Turkish and Djiboutian counterparts, according to Reuters.
In November, the Israeli think tank Institute for National Security Studies argued in a report that recognizing Somaliland could be in Israel’s strategic interest.
“Somaliland’s territory could serve as a forward base for multiple missions: intelligence monitoring of the Houthis and their armament efforts; logistical support for Yemen’s legitimate government in its war against them; and a platform for direct operations against the Houthis,” the report read.
It is unclear if the United States will follow suit. In August, Texas Republican Sen. Ted Cruz wrote to Trump urging him to recognize Somaliland.
“Somaliland has emerged as a critical security and diplomatic partner for the United States, helping America advance our national security interests in the Horn of Africa and beyond,” wrote Cruz.
This article originally appeared on JTA.org.
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‘Jesus is a Palestinian,’ claims a Times Square billboard. Um, not quite
“Merry Christmas,” proclaims a billboard in Times Square: “Jesus is Palestinian.”
Countless people will walk by the display or see it on social media, and many will believe it.
So, let’s go through why that statement is such a mistake, once again.
Jesus was a Jew. He was born to Jewish parents, was circumcised under Jewish law — traditionally, on Jan. 1, which is how that day became known as the Feast of the Circumcision — and lived as a Jew. He taught from the Hebrew Scriptures. He worshiped in the Jerusalem Temple. He observed Jewish festivals. He debated Jewish law with other Jews using Jewish modes of argument.
Go back to the Gospels in the New Testament — specifically Luke 4:16: “He went to Nazareth, where he had been brought up, and on the Sabbath day he went into the synagogue, as was his custom.” Or, John 4:9, in which a Samaritan woman asks Jesus: “How is it that you, a Jew, ask a drink of me, a woman of Samaria?”
Cross-reference other ancient sources. Josephus, a first-century Jewish historian, refers to Jesus as a Jewish figure executed in Judea. No serious historical study of Jesus elides this basic truth: Jesus was a Jew.
Yet many efforts through history have sought to sever Jesus from his Judaism — often, if not always, in an attempt to denigrate Jews.
In the second century, the theologian Marcion sought to completely sever Christianity from Judaism. For him, the God of Israel was inferior and the God of the Christians was morally superior. Jesus, therefore, belonged to a different moral universe. The early Church condemned Marcionism precisely because it erased Jesus’s Jewish roots, and ultimately dismissed the idea as a heresy that needed to be rejected.
In the twentieth century, Nazi theologians attempted to portray Jesus as Aryan and anti-Jewish, which Susannah Heschel documents in her book The Aryan Jesus: Christian Theologians and the Bible in Nazi Germany.
But it’s not just because of his religion that Jesus shouldn’t be considered Palestinian.
“Why not?” you might ask. “Didn’t he live in Palestine?”
The short answer is: Not yet.
When Jesus lived, the land of Israel was called Judea. It was under Roman rule, and it fell under several administrative districts: Judea, Galilee, and Samaria.
So, what is the source of the name “Palestine” for that area? It comes from the ancient people known as the Philistines, a perennial enemy of the Israelites. After the Romans crushed Jewish independence, they deliberately renamed the province in an effort to sever Jewish historical ties to the land, as well as to humiliate them by naming the land after their ancient foes.
To call Jesus “Palestinian” is therefore anachronistic.
Yet even so, the idea of Jesus as Palestinian appears in some strands of Palestinian liberation theology. Those strands tend to envision the Palestinian people as Jesus on the cross — crucified by Israel and the Jews, in an image that recalls the longstanding and deeply misguided allegation that “the Jews killed Jesus.”
This language appears repeatedly in the writings and sermons of Naim Ateek, the influential founder of the Jerusalem-based Christian organization Sabeel. In his 2001 Easter message, he wrote “as we approach Holy Week and Easter, the suffering of Jesus Christ at the hands of evil political and religious powers two thousand years ago is lived out again in Palestine,” adding that “Jesus is the powerless Palestinian humiliated at a checkpoint, the woman trying to get through to the hospital for treatment, the young man whose dignity is trampled, the young student who cannot get to the university to study, the unemployed father who needs to find bread to feed his family; the list is tragically getting longer, and Jesus is there in their midst suffering with them.”
Yes, of course, Palestinians have suffered and continue to suffer. But illustrations of that suffering should not include the pretense that Jesus was Palestinian. It suggests that Palestinians need to be seen as akin to Jesus to deserve safety and dignity, when in fact they deserve safety and dignity simply because they are human. And casting Israel and the Jews as crucifiers only resurrects medieval theology and hatreds; it adds nothing to the hopes for justice for Palestinians.
Mainstream Christianity has rejected this foul mythology. We have recently celebrated the sixtieth anniversary of the Christian world’s most vociferous denial of that ancient hatred. In 1965, Vatican II’s Nostra Aetate explicitly rejected the charge that Jews are responsible for Jesus’s death. The World Council of Churches issued similar warnings about reviving Passion-based antisemitism — the revival of the ancient accusation that Jewish leaders were responsible for the crucifixion of Jesus, and that Jews bear that guilt eternally.
History matters. Theology matters. And words matter — especially when they carry two thousand years of blood-soaked memory.
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