I woke up on Saturday morning, read the news from Israel that at least 50,000 Israelis had just demonstrated once more against Prime Minister Benjamin Netanyahu’s plans to strip the Israeli Supreme Court of its independence and put it instead under Netanyahu’s thumb — at a time when Netanyahu himself is facing corruption charges — and I asked myself a simple question: “What does President Biden think of this?”
Biden is as pro-Israel in his gut as any president I have ever covered. He has also had a long and mutually respectful relationship with Netanyahu. So I can tell you that whatever Biden has to say about Israel comes from a place of real concern. It’s a concern that the radical transformation of Israel’s judicial system that Netanyahu’s ultranationalist, ultrareligious coalition is trying to slam through the Knesset could seriously damage Israel’s democracy and therefore its close ties to America and democracies everywhere.
Here is the statement that Biden sent me on Saturday afternoon when I asked for comment: “The genius of American democracy and Israeli democracy is that they are both built on strong institutions, on checks and balances, on an independent judiciary. Building consensus for fundamental changes is really important to ensure that the people buy into them so they can be sustained.”
This is the first time I can recall a U.S. president has ever weighed in on an internal Israeli debate about the very character of the country’s democracy. And although it’s only 46 words, Biden’s statement comes at a crucial time in this wrenching Israeli internal discussion and could well energize and expand the already significant opposition to what Netanyahu’s opponents are calling a legal coup that would move Israel into the camp of countries that have been drifting away from democracy, like Turkey, Hungary and Poland.
Here’s why Biden’s 46 words are so important: First, it puts him squarely behind the compromise approach called for by President Isaac Herzog of Israel — and behind keeping Israel’s widely respected judiciary independent. Although Israel’s presidency is largely a symbolic job, the office carries moral weight. Herzog is a good man who has been trying to head off what he fears could be the most serious civil strife ever within Israeli society if such a big change in the judicial system, inspired in part by a far-right Israeli think tank, is rammed through.
Herzog has pleaded with Netanyahu and his coalition to step back and organize some kind of bipartisan, national dialogue that can patiently study what kind of judicial changes might be healthy for Israel but do it with legal experts, in a nonpartisan fashion and in a way that preserves the integrity of the judicial system that has existed since Israel’s founding.
Unfortunately, Netanyahu rebuffed the Israeli president, which prompted Herzog to declare on Jan. 24 about the so-called judicial reform: “The democratic foundations of Israel, including the justice system, and human rights and freedoms, are sacred, and we must protect them and the values expressed in the Declaration of Independence. The dramatic reform, when done quickly without negotiation, rouses opposition and deep concerns among the public.” He added, “The absence of dialogue is tearing us apart from within, and I’m telling you loud and clear: This powder keg is about to explode. This is an emergency.”
With Biden’s 46 words, Netanyahu now finds himself in a situation where, if he just keeps plowing ahead, he won’t just be snubbing the Israeli president; he will be snubbing the American president as well. That’s no small deal. I also suspect that Biden taking a stand on this issue in this measured but unmistakable fashion will encourage other Western democratic leaders, business leaders and U.S. senators and representatives to do so, too, which will also energize the opposition.
The second reason Biden’s words matter is their timing — it could not be more important. As The Times of Israel reported Saturday, the first reading for some of the most controversial aspects of Netanyahu’s judicial overhaul “is set for Monday; a bill must pass three readings to become law, and the coalition has indicated it seeks to blitz the legislation through the Knesset by April.”
Those leading the opposition have called for a nationwide workers’ strike on Monday and a mass rally outside the Knesset to coincide with the first rounds of voting on the legislation. You can bet more than a few Israeli protesters will be quoting Biden’s words as they take to the streets.
Third, Biden has put himself and America squarely on the side of the Israeli majority opposing Netanyahu’s just shoving his “reform” through — in what increasingly looks like a judicial putsch.
A poll published Friday “indicated that over 60 percent of the public wants the government to halt or delay its legislative efforts to dramatically weaken the High Court of Justice and secure political control over judicial appointments,” the Times of Israel reported.
It also puts America squarely behind Netanyahu’s own attorney general from his last time in office, Avichai Mandelblit — the man who indicted Netanyahu in 2020 on charges of fraud, bribery and breach of trust and who has denounced Netanyahu’s judicial changes as just a disguised effort to quash his own trial and avoid jail.
Speaking to the Israeli TV program “Uvda,” Mandelblit said Netanyahu’s sweeping proposed changes to the judiciary are “not a reform” but rather “regime change.”
Because Israel does not have a constitution and the executive branch always controls the Knesset, Mandelblit explained, the only separation of powers — the only check on the executive branch — is the independent Israeli judiciary and Supreme Court. And what Netanyahu is proposing is that a bare majority of the Knesset — 61 out of 120 seats — become empowered to override any Supreme Court decision. With the narrowest of majorities, the government could put through any laws it likes.
Netanyahu’s plan also would give the government control over the selection of judges, which has long been in the hands of an independent selection panel, and it would also remove the independent legal advisers — the internal legal watchdogs — in each ministry. Currently, they are appointed by the Civil Service Commission and can be removed only by the attorney general. Netanyahu wants them instead appointed by and loyal to each minister.
Put it all together, and you would have a government that won by 30,000 votes out of 4.7 million having total control over the Supreme Court, judicial selection and each ministry’s legal advisers.
“I can’t be silent,” Mandelblit concluded. “If there is no independent judiciary, it’s over. It’s a different system of government.” The ruler “will decide,” he added. “He’ll have prosecutors of his own, legal counsels of his own, judges of his own. And if these people have personal loyalty to him, there is no supremacy of the law. This is a sinkhole. We’ll all be swallowed up by this.”
Finally, what Biden has done will add credibility to America’s voice in support of democracy globally. It says that America speaks up not just when China crushes democracy in Hong Kong. We speak up when we see democracy threatened anywhere. America has often taken issue with Israeli human rights abuses in its treatment of Palestinians in the occupied West Bank. But no American president in my memory had ever spoken out against proposed changes in the democratic character of the Israeli state — because, up until a few weeks ago, none ever had to.
If Biden’s message is not clear to the Netanyahu coalition, let me try to put it as simply as I can: America has supported Israel militarily and diplomatically and with billions of dollars in aid since its foundation, but not because it shares our interests. It does not always. Israel has stayed neutral between Ukraine and Russia, it is indifferent to human rights abuses in Egypt and Saudi Arabia, and Israeli businesses sometimes sell defense technologies to China that are very worrying to the Pentagon. We have given Israel so much support since its founding because we believe Israel shares our values.
And even when Israel behaves in ways in the West Bank or Gaza that are not consistent with our values, Israelis often fall back on them anyway. They tell us: “Hey, cut us some, slack. We live in a constant, violent struggle with the Palestinians. We live in a crazy neighborhood. And yet we’ve still managed to maintain judicial oversight of our armed forces, robust democratic institutions, as well as an independent judiciary and a free press.”
That argument is seriously threatened by what Netanyahu is pushing. And without it, what’s left? Shared interests won’t be enough, because they come and go.
That’s why Biden’s 46 words are so crucial. With those 46 words today, Biden is telling Israel our relationship has never truly rested on shared interests. It’s always been built up from our shared values. That is why it has endured so long — even when we disagree on interests. With his simple statement, Biden is signaling that whatever Israel does, it must not fundamentally depart from those shared values. Otherwise, we are in a totally new world.
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