US President Joe Biden welcomes President Isaac Herzog to the White House on July 18. Photo HAIM ZACH/GPO.
Originally published in the August 21, 2023 Jerusalem Report
What are the consequences of Israel’s legal overhaul for the US-Israel relationship?
I was on my way to meetings in Congress when my editor asked me to write about the state of the US-Israel relationship in the aftermath of the controversial judicial reform legislation, which weakened the ability of the Israeli Supreme Court to overrule government decisions it deems to be unreasonable.
Eyton Gilboa, an expert on US-Israel relations at The Jerusalem Institute for Strategy and Security (JISS), said, ”The fight over changing Israel’s justice system has caused enormous damage to relations with the United States. If Israel is not careful, it could get worse…. The government and the Knesset have not thoroughly discussed the negative implications of the overhaul on Israel’s foreign relations…. This issue does not seem to interest Levin, Rothman, and others in the Likud. But it should have been of great interest to Netanyahu.”
Living and working in America, speaking and meeting with members of Congress and their foreign policy aides, gives me a perspective on the state of the relationship, different from that of an Israeli. When I speak to Americans, especially Jewish Americans who are appalled at the government’s decision regarding reasonableness, I perceive anger at the radical messengers of change rather than the policy itself, of which most have, at best, a superficial understanding.
Although I spend a good amount of time in Israel, listening to intelligence, military, political, and defense leaders, as well as my Israeli friends who are not shy about sharing their opinions, I don’t claim to fully understand their perspectives, as they live the paradoxical lives of putting their children in harm’s way in the IDF, facing the possibility of war or terrorism at any time, yet are the fourth-happiest people on planet Earth. But that survey was before the current reform crisis.
From an American security perspective, the state of the US-Israel relationship is vital to American interests. Therefore, judicial reform, which affects Israeli national cohesion, is not only a domestic issue for Israel but also has strategic implications for the relationship. Israeli unity is the secret sauce for their national defense, and America relies on Israel as its only reliable ally in the region.
The JISS’s Efraim Inbar, Eran Lerman, and Yaakov Amidror wrote that national cohesion is more important than winning political arguments. The severity of the current security crisis should not be underestimated.
President Joe Biden’s call for an Israeli consensus to advance legislation does not cross the line into interference in a domestic issue. The judicial reform is a legitimate American security concern if it undermines Israeli society and the unity of its citizen army.
Like Israel, America is divided, especially within the Jewish community. In Israel, the split, at least on the popular vote in the last election, despite the claim that it was an overwhelming victory, is close to 50:50. An Israel Democracy Institute poll of the last election showed that the opposition had slightly more votes than the coalition. The claim of an overwhelming mandate for reform because the coalition has 64 seats in the Knesset is not warranted.
In America, the split between Democrats and Republicans is also 50:50. But the American Jewish community regarding support of Israel may be closer to 30:20:50. Thirty percent are strongly supportive of Israel, twenty percent were already harshly critical of Israel even before judicial reform, and 50 percent do not care or are ignorant about Israel and the importance of the US-Israel relationship for American interests. According to a Jewish Electoral Institute poll, Israel ranked next to last in “issues you want President Biden and Congress to focus on.” America’s Jews are locked into their echo chambers, which are 70% Democratic and 30% Republican.
I have been asked to give presentations (JCRC/Federation, universities, synagogues) explaining the judicial debate in Israel to audiences that span the political spectrum. I aimed to give them the facts in context and let them make their own decisions. Spending time with former Israeli justice minister Dan Meridor, who is against reform, and with Moshe Koppel, the intellectual leader in favor of reform, was instructive.
Interestingly, more times than not, when audiences were presented with a complete picture, people didn’t necessarily change their opinions. Still, there was more dialogue and understanding of the complexities of Israel’s judicial system, especially when they realized Israel does not have a constitution.
During one recent meeting in the Senate, a foreign policy expert asked me if I had been present at President Isaac Herzog’s address to the joint session of Congress. When I said I wasn’t, he said I really missed something.
He said that unlike a State of the Union address, when only one side of the aisle rises and applauds the US president’s comments, during Herzog’s speech well over twenty times the joint session of Republicans and Democrats rose in unison to applaud the Israeli president. And when he said challenging Israel’s right to exist crosses the line, the level of applause rose to its highest level. That was gratifying, as members of the anti-Israel “Squad” who maliciously accused the Jewish state of racism boycotted the speech.
Herzog said, “I am not oblivious to criticism among friends, including some expressed by respected members of this House. I respect criticism, especially from friends, although one doe not always have to accept it. But criticism of Israel must not cross the line into negation of the State of Israel’s right to exist. Questioning the Jewish people’s right to self-determination is not legitimate diplomacy, it is antisemitism.” According to CNN, “the remarks prompted a standing ovation with loud cheers and clapping.”
Herzog reassured Biden, saying, “It’s a heated debate, but it’s also a virtue and a tribute to the greatness of Israeli democracy… Our bond may sometimes be challenged, but it is absolutely unbreakable.” The 412-9 bi-partisan vote affirming support of Israel bears that out. According to VOA, Biden “assured Israel’s president that the friendship between their countries is ‘simply unbreakable,’ even amid the legitimate concerns over the judicial system and recent settler violence in the West Bank.”
After the controversial judicial reform vote, the Biden administration took pains not to overly criticize Israel but to emphasize the relationship’s strength. America’s secretary of defense clarified that American military support of Israel is unaffected. The Jewish Insider reported after the Israeli vote on reasonableness, “Senior White House officials… highlighted the close ties between Israel and the United States.”
Like America, after the repeal of Roe v.Wade by the US Supreme Court, life will go on, and the divided society and political parties will gear up for the next election. But unlike in America, which has a constitution and Supreme Court decisions that are hard to change, in Israel a future government led by what is now the opposition can much more easily change the judicial laws enacted by the Netanyahu coalition. That is already the theme for the next Israeli election.
However, what Prime Minister Benjamin Netanyahu chooses to do in the near future regarding further advancement of controversial judicial reform could bring Israeli society to the breaking point. Biden is correct in cautioning restraint and consensus, as it affects the indispensable US-Israel relationship.
The shining light in this tragic story is President Herzog, a non-political ceremonial president, who gave an extraordinary speech to a joint session of Congress and received overwhelming bipartisan praise. That was a balm to heal the rift in the relationship, which Netanyahu began to weaken when he went to Congress to plead against the JCPOA in 2014.
I was in the audience that day. I was asked by Israel’s defense minister what he should tell Netanyahu – if he should go or not. I said no. Not because what he said was wrong or that President Obama wasn’t trying to create “daylight” in the relationship, but because Netanyahu showed a blind spot then as now and should have known he was walking into a trap. Despite an amazingly eloquent, persuasive, and convincing speech, Netanyahu’s speech was disregarded by most Democrats. If he had waited until after their upcoming election, things would have been different.
What comes next in the relationship between America and Israel?
How the Biden administration will treat Israel in the future is of great interest to American allies in the region, watching to see whether the administration continues to stand with Israel if judicial reform legislation continues. If the US chooses to distance itself from Israel, friends and foes will interpret those actions as abandoning an ally. It would be reminiscent of when Obama abandoned Mubarak, Carter abandoned the Shah, Trump abandoned the Saudis when Iran attacked in 2019, and Biden left the people of Afghanistan to the Taliban, making America look like an impotent and declining superpower.
Despite the overheated rhetoric, Israel will remain a democracy. However, Israel never was and was never supposed to be a democracy in the image of America. Like England, Israel doesn’t have a constitution. Its legal system has roots in English common law, Jewish religious law, and of the Ottoman Empire. Israel is a Jewish and democratic state, and many of Israel’s critics in the US have used that particularism to bludgeon Israel in the court of public opinion, especially progressive Jewish Americans.
Finding the balance for American Jews, the US and Israel will require wise leadership and tolerance of different perspectives, something in short supply in America and Israel. The breach in the dam must be repaired now before the flood causes irreparable harm to the US-Israel relationship. ■
Dr. Mandel is the director of MEPIN (Middle East Political Information Network) and Mandel Strategies, a Middle East consulting firm, and regularly briefs members of Congress and their foreign policy aides.