Israel’s Right-Wing Coalition Gets the Cold Shoulder From Biden Many on the left warn that democracy is in peril, just because the government they back isn’t in power. By Eugene Kontorovich
The victory of Benjamin Netanyahu’s right-wing coalition has many on the left bemoaning the end of democracy in Israel. Even before voting began, Sen. Robert Menendez (D., N.J.) threatened harm to bilateral relations should Israelis vote to the right. The State Department has said it would boycott some right-wing ministers, and President Biden waited almost a week before calling to congratulate Mr. Netanyahu. Yet Secretary of State Antony Blinken apparently had time Friday to phone Palestinian President Mahmoud Abbas, who last stood for election (to a four-year term) in 2005.
What has degraded Israeli democracy, according to critics, is the electoral success of Itamar Ben-Gvir’s party. Mr. Ben-Gvir’s critics cite his past in the far-right Kahanist movement. For all the consternation, one would think he was the future prime minister, rather than the head of a second-tier party, with seven of 120 seats in the Knesset.
Yet those saying Mr. Ben-Gvir’s inclusion in the government is unacceptable were untroubled by the departing government, which included Ra’am, a party affiliated with Israel’s Islamic Movement, which was founded by a convicted terrorist; or the far-left Meretz, with roots in an actual Stalinist party; or by Prime Minister Yair Lapid’s apparent willingness to accept support from Hadash, a still-Communist party whose members of the Knesset recently justified terrorism against Israeli civilians.
Another theme in the dire forecasts for Israeli democracy are legal-system reforms that the new government may pursue. The measures would actually reinforce democracy and introduce checks and balances to a political system in which the Supreme Court has far more power than its American counterpart.
Like the U.S. Supreme Court, Israel’s strikes down laws as unconstitutional—even though Israel doesn’t have a written constitution. The court has, without statutory authority, taken upon itself the power to strike down any law or government action as “unreasonable”—that is, anything the justices don’t think is a good idea. The justices—they currently number 15—decide what laws to bestow “constitutional” status on. They also dominate the committee that appoints new justices as well as lower-court judges. Candidates don’t undergo confirmation hearings before the Knesset.
The legal reforms being discussed would weaken the ability of sitting justices to pick their successors. The reforms would allow the Knesset, in some cases, to override Supreme Court decisions based on interpretations of Knesset legislation—much as the Canadian Parliament can do. Such a measure would be a far less radical check on the court’s power than the court-packing U.S. Democrats have entertained as a way of reining in the judiciary.
For years, Israeli prosecutors have pursued Mr. Netanyahu for the crime of “breach of trust.” Some in the incoming government seek to do away with this offense because no one knows what exactly it prohibits. The U.S. Supreme Court, in Skilling v. U.S. (2010), struck down as unconstitutionally vague a similar statute about denying “honest services.”
The potential legal reforms don’t undermine the values Israel shares with the U.S. Instead, they would bring Israel closer to the American model.
On the Palestinian issue, the departing government was the most left-wing in a decade, and the first to include an Arab party. Yet the Palestinians still refused to negotiate. Diplomatic impasse isn’t a function of right-wing governments—except for the one in Ramallah.
The system of military governance that Israel applies in the West Bank was a temporary expedient established in the expectation that the Arab states, and later the Palestinian Authority, would trade land for peace. After decades of rejections of statehood by the Palestinian Authority, and the rise of Hamas, it shouldn’t be surprising if Israel stops holding its breath and applies its civil law to the areas within its jurisdiction under the Oslo Accords.
In the U.S. and almost all other democracies, national territory can’t be given up merely by executive decree. Yet in Israel, a week before the election, Mr. Lapid’s caretaker government handed over parts of Israel’s territorial sea and offshore gas fields to Lebanon, in exchange for nothing. This despite traditional limits on the authority of a minority government, and an explicit law requiring a Knesset vote and a national referendum. Yet the Biden administration didn’t express concern about the rule of law. It applauded the move.
Other countries that recently elected right-wing governments, such as Italy or Sweden, haven’t seen their leaders get the silent treatment from Washington. The alarm over Israel’s new government amounts to saying that Israel will be in America’s good graces only when it elects left-leaning governments. That is a challenge to democratic values.
Mr. Kontorovich is a professor at George Mason University’s Scalia Law School and a scholar at the Kohelet Policy Forum in Jerusalem.
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