Joe Biden wanted to send two heartfelt messages to Israel this week.
The first was “I love you”.
The President is the embodiment of true instinctive American support for Israel.
He entered public life in the early 1970s, just when the United States, after decades of ambivalence, had finally come out openly as Israel’s strategic ally, and as a politician with a deep and enduring interest in American foreign policy, he has remained fully invested in the US-Israel alliance for 50 years. Israel has many supporters in Washington, but President Biden is in a class of his own.
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Benjamin Netanyahu (Photo: Flash90)
The second message was that he sincerely believes that the constitutional changes currently being pursued by Benjamin Netanyahu’s coalition are very damaging, not only to Israeli society, which is deeply divided over them, but to the future of Israel’s alliance with America, which is based, in his view, not only on pragmatic shared interests but a notion of shared democratic values.
Biden passed on both messages to Netanyahu in their phone call on Monday evening, in which he even floated the vague promise of finally meeting him in person, a favour he has denied him for the past seven months.
President Herzog meeting US Secretary of State Antony Blinken (Photo: Getty Images)
President Herzog meeting US Secretary of State Antony Blinken (Photo: Getty Images)
But phone calls between leaders are then made public by their offices. The Israeli prime minister’s office chose to inflate the “invitation” and present it as proof that all is sunshine between Jerusalem and Washington.
He had a second opportunity 24 hours later when President Isaac Herzog, who did receive an actual invitation, arrived in Washington for a previously scheduled but timely visit. But that opportunity didn’t work either, because of the guest and a no-show.
In the talks between the two presidents’ teams, Herzog’s aides made it clear that he would very much prefer that Biden stuck to the first message in the public part of their meeting, with the media listening in.
He still thinks he can play a role in finding a compromise before the fateful vote on the “reasonableness standard” scheduled for Monday.
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President Isaac Herzog
Sitting beside the President of the United States while he criticised Israeli government policy would make it much more difficult for him to serve as a broker back in Israel. Or so Herzog believes.
The other person who affected Biden’s decision not to say anything controversial to the cameras while hosting Herzog was the chair of the Congressional Progressive Caucus, Pramila Jayapal, who said over the weekend that she would be boycotting Herzog’s address to a joint session of Congress on Wednesday and called Israel a “racist state”.
Jayapal’s comments caused a storm of condemnation and she published a statement saying, “I do not believe the idea of Israel as a nation is racist. I do, however, believe that Netanyahu’s extreme right-wing government has engaged in discriminatory and outright racist policies.”
But it convinced Biden to stick to the loving message in the meeting. He has enough political trouble at home as it is.
But the need to pass on the second message was still so urgent for him that on Tuesday afternoon, after Herzog left, he invited to the Oval Office the closest thing the Democratic Party now has to an unofficial ambassador to Israel (Ambassador Tom Nides left last week after two tumultuous years and a replacement has yet to be announced).
This was the New York Times columnist Thomas Friedman, who dutifully published within hours the strongest quote he got from the president: “My recommendation to Israeli leaders is not to rush. I believe the best outcome is to continue to seek the broadest possible consensus here.”
No one comes out well from this saga. Not the Biden White House, which can’t work out how to send the president’s messages; not the Israeli prime minister’s office, which angered the Americans by misrepresenting their phone call; and not President Herzog, who is flying back to Israel with his country’s relations with its most important ally in disarray.
And yet he still believes he can deliver the elusive compromise that will avert national chaos next week.
Judicious judge
Another anxious Israeli who chose his words very carefully this week is Noam Sohlberg. Unlike Herzog, he is not president, but he hopes to be president of the Supreme Court in six years.
But he will become president only if the unofficial “seniority” system, whereby Supreme Court justices retire at 70 and the president is the one who has served the longest time on the senior bench, continues.
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Yariv Levin (Photo: Handout)
Justice Minister Yariv Levin, the father of the “legal reform”, is determined to spend the next Knesset term, after the High Holy days, in changing the system for appointing Supreme Court judges.
Justice Sohlberg is widely regarded as the leader of the Supreme Court’s “conservative” faction. He was also the first resident of a West Bank settlement to be appointed to the senior bench.
Three years ago, he wrote a long and learned article based on a lecture, in Ha’Shiloach, a right-wing intellectual magazine, on the “reasonableness standard” as it is used by the Supreme Court in administrative law. It’s the kind of article that few people have read, yet many cite.
Two weeks ago, Benjamin Netanyahu made his first, and to date only, public statement on the amendment his coalition is about to pass. “Correcting the reasonableness standard is not the end of democracy,” he intoned.
“It is strengthening democracy.” But he went further: he invented a name for the amendment — “Sohlberg Reasonableness”.
Those who had read Sohlberg’s article and managed to make it all the way to the end were scandalised.
The judge had indeed trenchant criticism for the expansive way in which the court had used the reasonableness standard to disqualify government decisions at the height of former Supreme Court President Aharon Barak’s “judicial revolution”, and he is certainly no judicial activist himself.
But he also cited favourably some of the rulings in which the standard was used, and in no part of the article advocated the kind of legislation the government is now proposing, which forbids the Supreme Court to even discuss “reasonableness” when it comes to any government decision, by cabinet or individual ministers, including all appointments.
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Noam Sohlberg (Photo: copyright unknown)
With hundreds of thousands of Israelis out on the streets protesting against the legislation which they are convinced will usher in dictatorship, and hundreds of air force pilots and doctors about to go on strike, I asked a number of friends and former colleagues of Sohlberg why he wasn’t making it clear that the government’s “Sohlberg Reasonableness” wasn’t his.
I received three kinds of answers, which I think are all true. There was the standard “judges don’t speak out in public, they express themselves in their rulings and the occasional academic article”.
There was the cynical explanation: “Sohlberg wants to be president in six years. Angering the coalition will not help his chances.”
And then there were those who surmised that Sohlberg is somehow part of the group of legal experts who, with President Herzog’s blessing, are still trying to reach a compromise before it’s too late.
Then, on Monday evening, the Courts Administration put out a statement in Sohlberg’s name. It said: “I wasn’t thinking then, three-and-a-half years ago, in that lecture, about a correction through legislation; I was thinking of a change that would be expressed in [the court’s] rulings.”
Why was Sohlberg setting the record straight, ten days after the prime minister’s statement? Did it mean that he had given up on the attempts to reach a compromise?
An hour later, the Courts Administration put out yet another clarification: “Justice Sohlberg was answering a question regarding his article from three-and-a-half years ago and wasn’t taking a position on the current legislation.”
It’s hard to read both statements with an open mind and not see a contradiction between them — that is, if you’re not a lawyer or a politician. If you are one or the other, then it’s perfectly clear: a compromise is still possible.
