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Opinion

The old elite vs. judicial reform

A strategy of dominating unelected institutions can only work for so long.

Israelis protest against the Israeli government's planned judicial overhaul, outside the home of Defence Minister Yoav Galant in Moshav Amikam, on July 8, 2023. Photo by Shir Torem/Flash90 *** Local Caption *** ???? ?????
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Israelis protest against the Israeli government's planned judicial overhaul, outside the home of Defence Minister Yoav Galant in Moshav Amikam, on July 8, 2023. Photo by Shir Torem/Flash90 *** Local Caption *** ???? ????? ???? ????? ???? ????? ????? ?????? ?????? ???? ????
Erez Levanoni
Erez Levanoni is a veteran Israeli author and diplomat.

I’ve spent months talking to opponents of Israeli judicial reform. With a few exceptions, these conversations have been substantive and productive. I understand and sympathize with their fear of unlimited government power. They understood my fear of unlimited judicial power. We found common ground on almost every issue.

Why, then, were none of the academics, businesspeople, military officers and protest leaders I spoke with willing to go public with a compromise on the issue?

I will not engage in armchair psychoanalysis. I assume that opponents of reform are rational actors trying to advance particular goals. Still, I think their puzzling behavior can be explained.

Scholars who study social and political values in various societies have identified two major factors that drive them: religiosity and tribalism. That is, if you know how religious (as opposed to secular) a society is and you know how tribal (as opposed to universalist or individualist) it is, you can more or less predict that society’s consensus values.

Since Judaism is both a religion and a nationality, one would assume that religiosity and tribalism are not really two separate axes in Israel.

In the recent past, however, Jewish society decoupled religion from nationalism: The Jews most strongly attached to religion were very skeptical of one particular form of Jewish nationalism—Zionism. At the same time, the strongest Zionists often rebelled against what they saw as pious quietism.

While we weren’t looking, however, Jewish traditionalism and nationalism returned to their natural alignment. Traditionalist haredim have become increasingly nationalistic, even if most are not yet prepared to assume the costs. Secular left-wing Zionists have become pacifists and universalists. Many younger nationalist Likud Party members have joined forces with traditional communities.

The political consequences are that, as the two main axes that determine political views become increasingly aligned, political parties are lining up accordingly.

We can think of each voter and each party as a point on a line extending from left to right. Each party attracts voters that are closer to it than to any other party. This creates what could be called a “median voter” who has an equal number of voters to their right and left.

In a two-party system, the party that captures the median voter wins. Thus, both parties will try to appeal to the median voter. In a multi-party system such as Israel’s, the party that captures the median voter is almost guaranteed to be included in the governing coalition and exercise outsized power.

Over the past decade, the median Israeli voter has shifted to Likud. They are more tribal and traditional than before, which is politically inconvenient for those closer to the universalist-secularist pole. This is the core of the problem—the rest is commentary.

For those wishing to reverse this inconvenient trend, what would be the most intelligent strategy?

They could attempt to separate the tribalist-universalist axis from the traditionalist-secularist axis. This would revive political support and representation for secular hawkishness and non-secular dovishness.

It is easy to find those who support the latter and hand them a bullhorn. A far more impressive achievement would be the coelacanth-like revival of 1950s-style military types—leather-skinned, gravelly-voiced, one hair-trigger away from violence—who attack anyone vaguely religious as shirkers, messianists and interlopers. Seems like a longshot, but the protest organization Achim Laneshek is doing its best.

Still, the long-term proliferation of coelacanths seems unlikely. There is, however, another strategy that has potential.

Securing that median voter can win you an election, but winning an election isn’t enough. The elected government needs public institutions—the army, the courts, prosecutors, culture commissars, public universities, public broadcasting and so on. These entities need to cooperate, at least a little bit, with the government in order to get things done.

So, if you’re a member of an old elite unable to win elections, a good strategy would be to make the appointments processes in all these institutions as immune to government influence as possible. By simple inertia, they would remain in the hands of your friends.

This might seem undemocratic, but it can be sold as simple conservatism, a way to maintain institutional continuity and professionalism. If these institutions begin to look suspiciously monolithic, as they inevitably will, you can build a campaign around the implicit claim that substantive democracy requires keeping the wrong people out of public institutions.

If such people aren’t excluded, you can claim, we would politicize the courts, corrupt the prosecutors, encourage complacency in the army, suppress academic freedom, debase culture, push partisanship in public broadcasting and so on.

Then, once you control the appointments process, you can make sure that each of these institutions has as much power vis-à-vis the government as possible.

In the short term, this strategy works.

To ascertain whether it can work in the long-term, however, we should ask why any decent person would object to it. Shouldn’t a classical liberal like me prefer stable institutions? Shouldn’t I fear those who tend towards nationalism and traditionalism and thus could threaten my freedoms?

Let’s see: Have decades of inbreeding in our public institutions prevented politicization of the courts, corruption of prosecutors, complacency in the army, suppression of academic freedom, a debased culture and partisanship in public broadcasting?

If you saw how prosecutors, the courts and the army handled violent protests and insubordination during the Gaza disengagement and compare it to their conduct during the current protests, the question answers itself.

This is why I prefer stable institutions, but not monolithic ones. I prefer the stupidity of politicians who want reelection to the vindictiveness of bureaucrats who don’t. I fear coercion from both sides of the political spectrum, but I especially fear the side that has already demonstrated its willingness to undermine state institutions to its own political advantage.

It is doubtful that the old elites’ strategy will work long-term. They can maintain their disproportionate power in unelected public institutions so long as the public passively accepts it. But the moment the elites panic and too blatantly flaunt their power and their willingness to abuse it, the spell is broken. The rest is just a matter of time.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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