Two days after Israeli prime minister Benjamin Netanyahu postponed his government’s planned judicial reforms, President Joe Biden felt it necessary to go after his own country’s ally. In an off-the-cuff comment, he said, “Like many strong supporters of Israel, I’m very concerned. And I’m concerned that they get this straight. They cannot continue down this road. And I’ve sort of made that clear.” “Hopefully the prime minister will act in a way that he can try to work out some genuine compromise,” he continued, “but that remains to be seen.” Later on Tuesday, the president added that he hopes Netanyahu “walks away from it [the reform].”
There are plenty of reasons to be concerned about Israel’s judicial reforms. The proposals and the demonstrations they’ve sparked have undercut the country’s stability at a particularly dangerous time in the Middle East. Iran is on the march. Saudi Arabia seems to be drifting away from America’s orbit. China is expanding its reach. A strong relationship with Israel must be a central plank in any American Middle East policy agenda.
Some of the reforms themselves are also concerning. The judicial override provision would allow the Knesset (Israel’s parliament) to overturn a Supreme Court ruling with a simple majority, eliminating the judiciary’s check on government overreach. Such a change would be a regression, not a reform. The same can be said for the provision eliminating the court’s ability to exercise judicial review over a Basic Law (the highest form of Israeli law). As the Israel Democracy Institute (IDI) points out, because Basic Laws can be passed by a simple majority, this is an easy way to skirt judicial review entirely. Some of the other reforms are likewise poorly constructed.
Nonetheless, the whole situation is much more complicated than critics make it out to be. The Israeli Supreme Court has arrogated an excessive amount of power to itself and elected politicians have far too small a role in the selection of justices. Further, the Court created a quasi-constitution for the country in the 1990s without the input of the Israeli people or elected government. The attorney general is also effectively independent of the prime minister, and has the power to compel him or her to keep silent, as the current AG did for Netanyahu regarding the judicial reform.
The broader point is that things are a whole lot more complex than Biden’s simplistic condemnation would suggest. If the president wanted to make his thoughts known to Netanyahu, he could have done so through private channels, as has hitherto largely been the case. Making such a public and divisive statement was a blunder, especially given Netanyahu’s postponement of reforms.
Particularly now, when the United States is losing influence in the Middle East, undercutting relations with an ally like Israel is foolish. Barring extreme circumstances, the president does not need to publicly stick his nose into the politics of America’s allies, however reasonable the criticisms might be. It’s also one thing to make a brief statement of concern; it’s quite another to outright take sides on the policy of a foreign state, as Biden did in expressing his “hope” that Netanyahu tosses the reforms. Biden’s criticism is more likely to inflame the partisan divide in Israel than it is to convince Netanyahu to back down. And sure enough, the opposition is now using Biden’s criticism to go after Netanyahu, while members of Netanyahu’s coalition are responding angrily to the president. What good does this do for America?
It’s hard not to see the irony in Biden’s criticism — he is, lest we forget, the same Joe Biden who refused to repudiate members of his party who called for packing the US Supreme Court. That would be just as bad as the Knesset having the power to override rulings with a simple majority. You should have your own house in order before criticizing others, a saying Biden should take to heart.
