Happening now: The smooth, malevolent unraveling of Israel’s vulnerable democracy
The balance between the branches of government is being shattered as I write, in a country that cannot afford the bitter division its prime minister insistently fosters
David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).
This Editor’s Note was sent out earlier Wednesday in ToI’s weekly update email to members of the Times of Israel Community. To receive these Editor’s Notes as they’re released, join the ToI Community here.
Six days after it fired the head of the Shin Bet, three days after it began the process of ousting the attorney general, a day after it passed a budget that did not boost health and welfare spending but bolstered funding for ultra-Orthodox yeshivas by billions of shekels, the government Wednesday is passing a law that remakes the process by which Israel chooses its judges and Supreme Court justices.
In overhauling the Judicial Selection Committee, the legislation significantly elevates the influence of the political echelon in choosing judges, marginalizes the role of the justices on the committee, and removes the representatives of the Israel Bar Association altogether.
When coalition and opposition politicians cannot agree on Supreme Court nominees, each side will submit three names of candidates it wants on the bench, and one of each of those three will have to be selected — a recipe for the selection of partisan justices to the highest court in the land. This, in turn, will have judges all the way through the court system worrying about how their rulings might harm their careers or, alternately, tailoring those rulings to please the political leadership.
Although some of this legislation is being passed as part of Israel’s ostensibly “semi-constitutional” Basic Laws, it requires only a simple Knesset majority to become law — as it surely will later Wednesday or early Thursday. Benjamin Netanyahu’s right, far-right, ultra-Orthodox coalition has a 68-52 majority in the Knesset.
The ease and speed with which laws that cut to the heart of Israeli democracy can be pushed through parliament underlines the vulnerability of our governing structure. We have no constitution. The legislature is powerless when, as today, the governing coalition enjoys a solid majority and relative unity of purpose. The only brake on abuse by the elected majority, the only protection of all basic rights, is the judiciary, and today’s vote will take a hammer to judicial independence.
Down the road, the coalition intends to both limit areas in which the Supreme Court is allowed to exercise judicial oversight, to require unanimity or near unanimity on the bench for any effort to strike down legislation, and to enable the Knesset to relegislate any law that is nonetheless somehow struck down. The coalition’s determination to subjugate the Supreme Court will only become more urgent should the justices accept petitions against the firing of Shin Bet chief Ronen Bar and/or Attorney General Gali Baharav-Miara.
Theoretically reversible
The legislation that will become law in the coming hours will not take effect until the next Knesset — that is, after the next elections, which are due to be held in October 2026.
In theory, it can be reversed as terrifyingly smoothly as it is being passed. This, however, would require the election of a solid coalition interested in reversing it and undoing other legislative devastation the Netanyahu coalition is bent on wreaking. Such legislation notably includes the enshrining in law — in the midst of Israel’s longest war, with the IDF acutely short of people-power and reservists serving month after month on multiple fronts — of the untenable, unequal, undemocratic and ultra-divisive exemption from military or national service of taxpayer-funded young ultra-Orthodox males. (The High Court will almost certainly strike down any such law if it still retains the power to do so.)
Every opinion poll since October 7, 2023, has indicated that the current coalition has next to no chance of retaining power. But Israel’s opinion polls are notoriously unreliable, and take no account of Netanyahu’s peerless political skills, his and his loyalists staggering social media heft, and the abiding pusillanimity of the opposition.
Netanyahu has both resisted a state commission of inquiry into the October 7 Hamas massacre, and rejected going back to the polls to seek a renewed mandate from the public given his ultimate responsibility for the failures surrounding October 7.
Some critics believe he may resort to skewing the next elections if he feels he’s facing defeat — by pushing them off, or extending the right to vote to Israelis who live abroad, or (again) deterring Arab voters. However, with the mainstream in Israel having shifted further to the right — as a consequence of both the horrors of October 7, and demographics (the ultra-Orthodox community is Israel’s fastest-growing) — he would likely be far better placed to win, without resort to electoral foul play, than the polls would have us believe.
“In a democracy, the people are sovereign. And the people demands that its free vote in the polling booths be practically carried out in decisions, appointments, policies,” Netanyahu declared in the Knesset on Wednesday. “That does not mean that the government has unlimited power,” he allowed, “but it cannot be that the government has zero power… There must be a balance between the branches of governance.”
But it is that ultimate responsibility to the people he has sought to evade since October 7, and that balance between the branches of government he is now demolishing.
Lemmings
Hamas managed to carry out its invasion and slaughter because Israeli political and security chiefs refused to acknowledge what was playing out before their very eyes — that Hamas was gearing up for mass murder. Nobody at the helms of the political, military and intelligence hierarchies stood up and shouted and screamed against the unfounded, indeed insane “assessment” that Hamas — a self-declared Jew-killing entity that had built an army, drawn up its invasion plans and was openly training for attack — was deterred, was interested in maintaining calm in Gaza, was not seeking escalation, was not bent on destroying Israel.
Nobody with real authority took the opposite view, the commonsense view. Nobody even posited it. And thus nobody took the rudimentary precautions to guard against the onslaught.
You might have thought that lessons would have been learned from the catastrophic consequences of such lemming-like behavior — that those in key positions of power would ask more questions and eschew mindless, dutiful unanimity. In which context, you might have thought that, for all the appalling failures extending to the Shin Bet on October 7, and the obligation of Shin Bet chief Ronen Bar to step down, Israel’s ministerial leadership might have at least paid some attention to the letter he submitted to the cabinet in which he argued that he was being fired now, after 17 months, for reasons that do not relate primarily to October 7, but rather for improper motives that “seek to prevent the pursuit of truth.”
Specifically, not a single minister sought to delve into Bar’s stated concern that Netanyahu has acted disingenuously in overseeing the hostage-ceasefire negotiations — with the implication that Israel has now plunged back into war against Hamas in Gaza, with the agreed framework for a second-phase release of the last 24 living hostages unfinalized and more soldiers lives’ again on the line, when a better alternative may have been available.
Not a single minister bucked the line that Bar had to go immediately. Not a single minister sought to question the timing. The vote to send him home was unanimous. As, indeed, three days later, was the vote to formally begin the process of dismissing Attorney General Gali Baharav-Miara.
What is the point of these cabinet meetings, indeed of these ministers, if they are incapable of independent thought and examination?
Lessons unlearned
The United States, too, has an immensely divisive government and a president unfazed at fostering profound contention. The difference is that Israel simply cannot afford the “luxury” of deep and bitter infighting. America’s direct neighbors are not firing rocket barrages across its border. Mexico and Canada are not plotting military invasions in pursuit of a declared anti-US genocidal ambition. The American political pendulum swings, the political climate heats and overheats, but the country’s physical existence is not imperiled.
Israel simply cannot afford the “luxury” of deep and bitter infighting. America’s direct neighbors are not firing rocket barrages across its border. Mexico and Canada are not plotting military invasions, in pursuit of a declared anti-US genocidal ambition
Not so here, where enemies on our doorstep relentlessly probe for weakness and murderously exploit it. That’s what happened on October 7, 2023, when Israel let down its guard.
Among the obvious lessons: acute wariness regarding external threats, and a genuine emphasis, not just lip service, on internal unity. Find a formula for increased ultra-Orthodox military service, and help heal an immense, harmful and corrosive inequality. Negotiate a genuine, constructive compromise on judicial reform, rather than bludgeoning through a revolution.
Almost exactly two years ago, on March 25, 2023, then-defense minister Yoav Gallant warned that the judicial overhaul legislation was causing such profound rifts, penetrating the military, as to constitute a tangible threat to Israel’s security. And yet here we are again, internal dissent rising, those lessons unlearned, enemies salivating.
Witkoff doesn’t get Hamas
Stunningly, after one American hostage negotiator, Adam Boehler, made evident that he understands Hamas less than just about anybody who has ever heard of it, his more senior Trump administration colleague, Steve Witkoff, indicated that he, too, does not recognize what Israel, the Jewish people and the rest of the free world are up against when facing Hamas and other death-cult Islamic extremist terror groups.
In an interview on Friday, Witkoff stated: “What we heard in the beginning of this conflict is Hamas is ideological, that they’re prepared to die for a whole variety of reasons. I personally — and I talk to the president about this… I said to him, ‘I don’t think that they are as ideologically locked in.’ They’re not ideologically intractable. I never believed that.”
“They strap the suicide vest onto young kids who don’t know what they’re doing… They tell them a story.”
“Once you understand that [Hamas] wanted to live, then you were able to talk to them in a more effective way.”
No! Good grief. It really, truly, should not need saying, least of all to this plainly decent man, who is seeking to get the hostages out of the Hamas hellhole, but Hamas is emphatically, utterly, ideologically intractable. Its declared goal, its raison d’etre, is to destroy Israel and kill Jews. It carried out years of suicide bombings. It took control of Gaza and subverted any and every resource to the building of its war machine, with supreme indifference to the well-being of Gazans.
If it were ideologically tractable, it would have considered itself sitting pretty on October 6, 2023 — well-funded and running its own country. Israel had gone — back to the pre-1967 border. It could have laid down its arms, stopped being Hamas, and turned Gaza into a Middle East Riviera.
But of course it didn’t, because it exists to wipe out Israel. And in the 17 months since it clearheadedly and barbarically opened its war, it has — in its ongoing determination to rebuild, rearm and rise to strike again — ruthlessly leveraged the hostages it coldheartedly abducted, and sacrificed the lives of tens of thousands of people in Gaza, including thousands of its own gunmen, rather than ideologically unlock.
Hamas does not want to live, as Witkoff put it. It does not value life; it seeks to end life.
The Times of Israel Community.