President Joe Biden taking sides in the current judicial reform controversy in Israel was a stunner. His recent remarks were nothing less than a broadside against the Israeli system of parliamentary government in furtherance of his obsession with the “two state solution.”
Not only did he lecture Israel on the proper relationship between the Israeli Supreme Court and the Knesset – that in order to preserve Israeli democracy from political excesses, the supreme court must remain the final arbiter of the validity of legislation and that power should not be shared with the Knesset – but his attack on the proposed changes under debate could just as easily have been leveled at other democracies like Great Britain and Canada whose governments also feature legislative supremacy.
What is key are the words the President chose in the statement he gave to The New York Times:
The genius of American 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 that they can be sustained.
This is a president who has been comfortable with pursuing major changes here in the United States with only the slenderest of Congressional and Senate margins and in votes that were invariably along strictly party lines. With half of the country against him, Biden can hardly condemn non-consensus policy-making. The notion that he has an abiding and fundamental concern for the diminution of the power of the court vis-à-vis the legislature is almost laughable.
What is not a laughing matter, however, is why Biden focused on the need for consensus in the case of Israel.
Israel’s notoriously fragmented national decision-making is hardly a new phenomenon. Governing coalitions have typically been cobbled from several parties representing no more than a two or three Knesset majority. Talk of a consensus government in Israel flies in the face of reality and the facts on the ground.
Why then did President Biden focus on the need for consensus? We rather think that his target was not the shift in the power of the courts to the Knesset per se, but rather the plans he believes the Netanyahu-led government intends to push through the Knesset, plans he opposes and wants the high court positioned to invalidate. They concern such issues as the relationship with the Palestinian Authority; the legitimacy of settlements; land rights, religious rights, housing, education, annexations, and use of public funds; and the administration of the various holy sites.
For this reason, the Biden message can be taken two ways. He can be saying that the power of the court should not be tampered with, absent a consensus to do so. Alternatively, he could be saying that the substantive changes with which he disagrees should not be pursued unless there is a consensus of public opinion. Either one works for him.
While the views of an American president cannot simply be dismissed out of hand, we believe that Israel should be free to take care of its business the way it sees fit – and that includes the way its decisions are made.