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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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Victory for Mamdani’s candidates prompts Jewish leaders to puzzle over implications

Jewish leaders across the political spectrum nationally were reeling — some in celebration, others suffering through elevated anxiety — after a trio of Congressional candidates endorsed by New York City Mayor Zohran Mamdani swept their primary contests Tuesday by taking out establishment favorites with track records of supporting Israel.

“We’re disappointed in the losses,” said Halie Soifer, chief of the Jewish Democratic Council of America, who argued that two of the losing incumbents, New York City Reps. Dan Goldman and Adriano Espaillat, “represent the views of the vast majority of Jewish voters.”

But close observers of the outcomes, which also included the loss of Brooklyn Borough President Antonio Reynoso in the contest for an open seat, were struggling to divine the broader meaning of the results.

Did the victories for progressive Brad Lander against Goldman, Claire Valdez against Reynoso and Darializa Avila Chevalier against Espaillat — after all three charged their opponents with enabling genocide by Israel against Palestinians — mark the end for Democratic politicians who hold traditional pro-Israel views?

Or did they represent something more narrow: New York City’s extremely liberal Democratic voting base flexing its muscle, Mamdani’s enduring popularity following his election last November or generalized anger toward a Democratic establishment that has been viewed by many of the party’s voters as too weak against President Donald Trump?

Sophie Ellman-Golan, a spokesperson for Jews for Racial and Economic Justice, a local group that is closely aligned with Mamdani, called Tuesday’s results a “sweeping left victory” but acknowledged it was hard to extrapolate beyond New York City.

“Voters are absolutely not having it for establishment Democrats who refuse to stand up and fight fascism,” Ellman-Golan said .

Some more moderate candidates did score wins outside of New York City. State delegate Adrian Boafo won a crowded race to replace retiring Rep. Steny Hoyer in Maryland with the support of AIPAC and other pro-Israel Democrats.

And even in New York, not every election went to candidates who endorsed Mamdani’s brand of politics. In the Bronx, Rep. Ritchie Torres — one of the Democratic party’s staunchest supporters of Israel — handily defeated Michael Blake, a former state assemblyman who threw his support to Mamdani during the mayoral primary last year but did not obtain Mamdani’s endorsement for Congress. Blake had repeatedly attacked Torres as purportedly beholden to the American Israel Public Affairs Committee but received just 22% of the vote to 72% for Torres.

For state comptroller, incumbent Thomas DiNapoli — who made additional purchases of Israel bonds in the aftermath of Oct. 7 — beat Jewish challenger Drew Warshaw, who promised to divest New York State from Israel Bonds and argued DiNapoli was helping to “finance Israeli Prime Minister Benjamin Netanyahu’s wars.”

State Assemblymember Micah Lasher won the race to succeed Rep. Jerry Nadler, who is retiring after 33 years in the House and served as one of Congress’ leading voices for liberal Jews. In that race, the leading candidates Lasher and Alex Bores both supported Israel.

“I don’t think it is transferable elsewhere in New York or throughout the country,” Soifer said, pointing to the power of the Democratic Socialists of America in the city. “While DSA candidates can win in some places, they cannot win everywhere.”

When it comes to Israel, the DSA’s case against establishment Democrats includes on the premise that funds the U.S. is spending on military aid to Israel should be spent on social programs to benefit working Americans. As Mamdani put it at Avila Chevalier’s primary night party, she ran a campaign that “called for a foreign policy of investing in babies and not bombs.”

With other key races still to be decided — including the U.S. Senate primary in Michigan, where Israel has emerged as a major fault line — there is no sign that Israel is losing its potency in Democratic contests.

That has left some liberal Jews despairing.

Rabbi Jonah Pesner, director of the Religious Action Center of Reform Judaism, released a statement decrying “the false choice between Jewish safety and Palestinian dignity” and condemning politicians who “demonize supporters of Israel, or deny Israel’s right to exist.”

Some observers also sought to draw contrasts between Tuesday’s insurgent victors. Lander, for example, considers himself a liberal Zionist and has close ties to center-left Jewish organizations in New York City. He partnered with Mamdani during the mayoral race, and Mamdani encouraged him to challenge Goldman despite their differences over Israel.

Lander’s support for a two-state solution — meaning the preservation of a Jewish state in Israel, rather than its elimination in favor of a binational country — also earned him an endorsement from J Street and a warm reception from the New York Jewish Agenda, a liberal pro-Israel group that has expressed concern over Mamdani’s policy positions on Israel.

Margo Hughes-Robinson, director of NYJA, said she was celebrating Lander and Lasher’s victories as “wins for friends of the family.”

There was less cheering among Jewish establishment leaders for the victory of Avila Chevalier, who went from helping to lead the pro-Palestinian encampment at Columbia University two years ago to likely representing the Congressional district that includes the campus.

Avila Chevalier was perhaps the most outspoken opponent of Israel in Tuesday’s races and has staked out positions to Mamdani’s left on the conflict. Avila Chevalier defended her decision to attend a rally held in Times Square on Oct. 8, 2023, which many Jewish leaders — and some outside the community, like Rep. Alexandria Ocasio-Cortez — condemned for condoning Hamas violence. She has also called Zionism “an ideology that is looking to create a political system where one group of people has more standing before the law than another group of people.”

Tuesday’s contest also followed the victory of Janeese Lewis George, another candidate endorsed by the DSA, in the Democratic primary for Washington, D.C. mayor last week.

Ron Halber, chief of the Jewish Community Relations Council of Greater Washington, said he thought the anti-Zionist left’s success would be relatively short-lived but acknowledged that Israel has an image problem and to fix that they needed to “rehabilitate their behavior.”

“People don’t like the product that pro-Israel Democrats are selling,” Halber said.

The post Victory for Mamdani’s candidates prompts Jewish leaders to puzzle over implications appeared first on The Forward.

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Israel’s cheerleaders lost big in the New York primary

To read the news Wednesday morning, the biggest loser in New York’s primary elections wasn’t a candidate in the race. It wasn’t even a person. It was Israel.

Three candidates who support ending or conditioning American military aid to Israel, all backed by Mayor Zohran Mamdani, won competitive primaries. The New York Times‘ assessment was blunt: “victories by pro-Palestinian Democrats show the party’s shift on Israel.” So was Politico‘s: “pro-Israel politics just took a huge hit in New York.” This very publication proclaimed the establishment of “a new political machine against Israel.”

Even outside those particularly charged races, the Israeli discourse was overwhelming. Micah Lasher, who won a crowded primary election to replace Rep. Jerry Nadler in New York’s 12th District, said during the campaign that he was “exhausted” by the focus on Israel.

Which makes it worth asking: Why did Israel become arguably the most prominent faultline in the Democratic primaries in the first place?

As the United States faces a cadre of alarming domestic issues — including the affordability (or lack thereof) of health insurance premiums, the future of abortion access and rising inflation — why should elections in New York be about Israel?

Foreign policy is an important issue for members of Congress, of course. And it’s not unreasonable that voters would want to know where candidates stand on, say, sending weapons to a country about whose wartime conduct many New Yorkers have grave concerns. But I think a lesson from this, which supporters of Israel may not want to learn, is that pro-Israel alarmism over progressive candidates has helped to boost those same candidates, rather than damage their chances.

In other words: the strategy of trying to write candidates out of viability by declaring them insufficiently supportive of Israel — or by suggesting that their positions on Israel mean they’re antisemitic, and shouldn’t hold elected office — hasn’t just not worked. It’s backfired disastrously, increasing the political salience of Israel in ways that hurt support for Israel in Congress.

Much of this is, I think, a downstream effect of last year’s election of Mamdani, during which hundreds of rabbis signed and circulated a letter declaring Mamdani’s politics — which center pro-Palestinian activism and skepticism about Israel’s existence as a Jewish state — a bridge too far. Mamdani’s campaign didn’t center Israel, at least at the start; it was actually about affordability. But the attention from pro-Israel groups and individuals increased the prominence of Israel in the election, so much so that by the time he won first the Democratic primary and then the general election, his victory was seen as being as much about Israel as much as it was affordability.

The same has become true of his endorsed candidates, too.

It’s not of course, that Israel was only important or prominent in these elections because of pro-Israel groups and individuals. There are political activists across the spectrum, including many in the progressive camp, to whom it is indeed the most important issue on the ballot. The same is true for voters. And multiple candidates, including Darializa Avila Chevalier and former Comptroller Brad Lander, were proactive about making their criticism of Israel a key point of their campaigns.

Still, we’re seeing an inversion of the longstanding norms by which staunch supporters of Israel have drawn a line beyond which someone’s politics on the Middle East make them unelectable. Such charges arguably played a role in Keith Ellison’s 2017 defeat in the race to be chair of the Democratic National Committee. As recently as 2022, the story of Andy Levin’s defeat in Michigan was that he, a J Street-aligned Democrat, had been bested by AIPAC.

For some of this week’s losing candidates and their supporters, that playbook backfired in real time.

Three weeks ago, the group Combat Antisemitism dinged Avila Chevalier for attending, in their words, an “October 8 rally celebrating Hamas massacre.” Avila Chevalier’s opponents made her attendance at that rally a talking point against her, which meant that just as her contest ended up being largely about Israel and antisemitism, her victory over Rep. Adriano Espaillat did, too.

Rep. Dan Goldman accused Lander, who is also Jewish, of using “dangerous antisemitic tropes” in the election. Lander — who said he felt “queasy” in talking about AIPAC, given the reality that there are antisemitic tropes about the group, but still attacked Goldman for his affiliation with them — won in a landslide.

If the Mamdani-backed candidates had lost, it would have been seen as a confirmation that Mamdani was an aberration, and that the old protocol of demanding at least moderate support for Israel from candidates for office in the most Jewish city in the country was still applicable. Instead, their victories seem like confirmation of a new era in Democratic politics when it comes to Israel — potentially not just for New York City, but also for the whole country.

There are good reasons to wonder how widespread that change might be. The AIPAC-affiliated United Democracy Project, for instance, spent $5.7 million on supporting Adrian Boafo in a Maryland House race, albeit by pouring money into races via ads that didn’t focus on Israel. Boafo, who called for closer ties between Israel and the U.S., won his primary.

But when we consider why, exactly, Israel took up so much space in this week’s primary elections, part of the answer has to be that it was in part because strong supporters of Israel wanted it that way. That things have worked out differently than they might have hoped is a lesson not only about Israel and New Yorkers, but about democratic politics: you can force voters to think about something, but you can’t actually force them to think what you want.

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Long after he was murdered by the Nazis, Marc Bloch enters the Panthéon

Yesterday, Paris experienced two record-breaking events. The first was that the city’s temperature hit 104 degrees Fahrenheit, forcing tourist sites like the Eiffel Tower and Louvre to close early. The second occurred at the Panthéon, which remained open to welcome the coffin of Marc Bloch, the first historian to enter this hallowed site.

The event was literally momentous. The massive 18th century structure, dedicated as the Church of Saint Geneviève, was rebranded by French revolutionaries in 1791 as the Panthéon, the monument for those “grands hommes” who devoted their lives to the French Republic. But in a time of relentless racist and antisemitic rhetoric, it was symbolically momentous, as well.

Bloch was born into a French Jewish family that chose to leave Strasbourg for Paris when Germany annexed their native Alsace in 1871. An adolescent during the Dreyfus Affair, Bloch interrupted a promising academic career in 1914, volunteering to serve in World War I. He spent four years in the infantry, then served as an intelligence officer; by war’s end, he had earned two wounds as well as four citations for bravery along with France’s most prestigious medal, the Croix de guerre.

Between the two world wars, Bloch and his friend Lucien Febvre founded Annales d’histoire et économique, a history journal that revolutionized the practice of history, turning away from the focus on great figures and events and towards the mundane and material lives of peoples. Bloch developed the influential, though elusive notion of mentalités: the term he gave to the intellectual and emotional structures that, no less certainly than was the case with material factors, shaped how past generations experienced their world. This theme informed his early book, Les Rois thaumaturges, or The Royal Touch, which examined the relationship between the myth of the king’s healing touch and the powers he was thought to embody.

Emmanuel Macron at the posthumous Panthéon induction of Marc and Simonne Bloch. Photo by Defeat”, a major work tahat President Emmanuel Macron has described as a warning against the “conformism” that undermines the “French will.” The ceremony marks the sixth Panthéon induction of Macron’s two terms, following those of Simone Veil, writer Maurice Genevoix, Josephine Baker, Resistance fighter Missak Manouchian and Robert Badinter. (Photo by Alice Sacco / POOL / AFP via Getty Images

The persistence of this myth was revealed in the wake of Nazi Germany’s defeat of France in 1940 and the nearly divine prestige bestowed on the nation’s new leader Philippe Pétain. The elderly hero of Verdun led a collaborationist regime whose first order of business was to pass a salvo of antisemitic legislation in late 1940 that stripped French Jews of their legal and civil rights. These laws forced Bloch out of his teaching position at the Sorbonne, despite the fact that, though 54 years old, hobbled by arthritis and father of six children, he insisted on rejoining the army in 1938.

Forced to abandon the family apartment in Paris, along with his library of 5,000 books, Bloch and his wife Simonne settled in the southern “Free Zone.” Stripped of his post, he nevertheless continued to practice the metier of historian. But he turned his critical gaze to the present rather than the past, holding fast to his claim—one as relevant now as then — that “when a widely held opinion is glaringly at odds with the truth, we are bound in honesty, I think, to attack it.”

The result was L’Étrange Défaite, or Strange Defeat, a searing account of how France’s military and political leaders managed to lose this war in a matter of weeks. Written in what Bloch described as a “white heat of rage,” he applied the same approach to these events as he did to those in medieval France, one “concerned with the task of seeking the solid and concrete behind the empty and abstract.” The principal reason for the debacle, he wrote, was that while the German strategists were fighting the present war, their French counterparts were fighting the last one. With poetic insight, Bloch observed that “thoughts of the last war clung to them because they were the thoughts of their youth. Those days long past had all the brilliance of things seen.”

By 1942, Bloch had come to see that, as a French patriot, he was duty-bound, despite his age, to join the Resistance where he assumed code names ranging from the majestic Narbonne to the mundane Monsieur Blanchard. His good fortune lasted nearly two years when, in the late spring of 1944, he was captured in Lyon, then imprisoned and tortured in its notorious prison Mount Luc. On June 16, he was taken in a truck with two dozen other résistants to an empty field outside the city and summarily shot to death. His buried remains were discovered shortly after the war, as was the manuscript for Strange Defeat.

Inevitably and rightfully, Strange Defeat provided much of the script for the evening ceremony at the Panthéon, which somehow managed to be both severe and stylish. Actors read passages from the book while military guards carried Marc and his wife Simonne’s empty caskets . (Bloch’s family did not want his remains to be removed from the cemetery where he is buried, while Simonne’s remains were never found.) Tellingly, when the caskets were set down inside the vast hall of the monument, an army officer recited, according to Bloch’s wishes, the several military citations for bravery he had received.

In his address, given while standing in front of a column which carried Bloch’s epitaph— dilexit veritatem (“He loved the truth”) — President Emmanuel Macron underscored the tragic relevance of the historian’s life to our own era. Referring to recent efforts made by figures on the extreme rightwing to reclaim Bloch as one of their own, Macron warned against “those who declare themselves more French than you…and yet are always the first to sell out France to hostile powers.” (Among the conditions Bloch’s descendants insisted upon was that representatives from the extreme-rightwing National Rally party could not attend the ceremony.)

But the words written by Bloch, in the introduction to Strange Defeat, are the most powerful evocation of who he was and what he represents. “By birth I am a Jew, though not by religion, for I have never professed any creed, whether Hebrew or Christian. I feel neither pride nor shame in my origins. I am, I hope, a sufficiently good historian to know that racial qualities are a myth, and that the whole notion of Race is an absurdity.” “I try never to stress my heredity save when I find myself in the presence of an antisemite.” Bloch concludes, simply and beautifully, “I was born in France. I have drunk of the waters of her culture. I have made her past my own. I breathe freely only in her climate, and I have done my best, with others, to defend her interests.”

In the other book he wrote during this period, The Historian’s Craft, Bloch quotes one of his sons who, when still a child, asked him what historians do. (The good historian, Bloch writes, “is like the giant of the fairy tale. He knows that wherever he catches the scent of human flesh, there his quarry lies.”)

As Bloch would have wished, he will always stand as an exemplar of what, in fact, historians do. And in the life he lived and values he died for, Marc Bloch will always stand as a reminder of what true patriots do.

 

 

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