Biden Won’t Stop Netanyahu’s Judicial Coup

The US has diplomatic tools that could put pressure on Israel—but the president seems unlikely to use them.

Joshua Leifer
March 14, 2023

Joe Biden, then vice president, greets Israeli Prime Minister Benjamin Netanyahu in Jerusalem in 2016.

Debbie Hill / Associated Press

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Even before Benjamin Netanyahu’s return to power in November 2022, the Biden administration began working behind the scenes to try to contain the right-wing Israeli prime minister and his more extreme political partners. In October, ahead of the Israeli elections, AIPAC stalwart Sen. Robert Menendez, the Democratic chairman of the Senate Foreign Relations Committee, visited Netanyahu to warn him against forming a coalition with Itamar Ben-Gvir, leader of the far-right Kahanist Jewish Power party. Netanyahu ignored him. In November, with coalition negotiations ongoing, US officials urged Netanyahu not to appoint Bezalel Smotrich, hardline settler leader of the Religious Zionism party, as defense minister. Netanyahu appointed Smotrich finance minister instead, but still granted him substantial authority within the ministry of defense. Last month, as Netanyahu prepared to give Smotrich power over the Civil Administration, the Israeli body that oversees the occupation of the West Bank, US officials warned that they would consider this a step toward annexation. Again, Netanyahu ignored them, and Smotrich officially took the reins. In each case, the Biden administration’s maneuvering proved ineffective at stopping Netanyahu from empowering his far-right allies.

Now, as Netanyahu’s government pushes forward with its plan to strip the country’s judiciary of its independence—sparking unprecedented protests in cities across Israel—left-wing and liberal activists in Israel and the US are calling on Biden to intervene. Yet there is little indication that the Biden administration will do so—or that it can. It is not only that Biden’s personality, along with domestic political concerns, make any dramatic measures to pressure Israel highly unlikely. The US government’s longstanding, unconditional commitment to Israel’s defense—a policy that Secretary of State Antony Blinken has called “sacrosanct”—all but guarantees that the Biden administration’s response to the Netanyahu government’s “judicial revolution” will fall far short of deterring the Israeli prime minister or holding his government accountable.

Biden “will go to great lengths to avoid a sustained public confrontation” with Israel, said Aaron David Miller, a veteran former advisor to six secretaries of state. From the Biden administration’s perspective, he noted, any dramatic measure taken in response to Israeli actions would risk spurring a Republican backlash as the 2024 US election campaign enters its initial stages. In terms of geopolitics, Miller added, “Israel and the Palestinian issue is way down on the list of priorities” as the war in Ukraine grinds on and the US presses toward great-power conflict with China. Then there is Biden himself, who “is not a confronter,” Miller said. A dependable ally of establishment Jewish groups, Biden has long worked to shield Israel and successive Netanyahu governments from consequences for human rights violations. “His pro-Israeli credentials and sensibilities are inextricably tied up with his DNA,” Miller said. “On the narrow question of judicial reform, I think the administration is not prepared to impose any sort of sanction.”

Yet if the Biden administration were willing to expend the political capital, “there’s a huge range of things that they could do to express their displeasure” with Israel, said Hadar Susskind, president and CEO of Americans for Peace Now, a liberal Zionist organization. Two of the most severe diplomatic steps that a US administration could take, explained Alon Pinkas, former Israeli Consul General in New York, include recalling the US ambassador to Israel for consultation—a move that typically reflects a profound fissure in the relations between two countries—and abstaining from votes on resolutions criticizing Israel at the United Nations Security Council, which the US customarily vetoes. These measures would entail no material consequences, but would signal the US’s intense disapproval. While the former is unlikely, Pinkas acknowledged, the latter has happened before. In 2017, at the end of President Obama’s tenure, the outgoing administration abstained from a UN Security Council resolution condemning Israeli settlement construction, thereby allowing it to pass. A US abstention on declaratory resolutions is “sort of meaningless at the UN,” Pinkas said, “but it’s very meaningful in terms of the US–Israel relationship.” For the Obama administration, this was a signal of exasperation and discontent—though not of a shift in the US government’s overall friendly policy toward Israel.

Susskind also suggested that the Biden administration could signal its willingness to reconsider the terms of US military aid to Israel. While the US cannot cut military aid to Israel or impose conditions on its use overnight, Susskind explained, Biden could in theory announce the establishment of a State Department commission that would explore conditioning aid to Israel ahead of next year, when deliberations will begin over whether to renew or modify the current $38 billion Memorandum of Understanding (MOU) between the two countries, which expires in 2029. Susskind named several additional “more targeted steps” that Biden could take, mainly reversing measures taken by the Trump administration. These include undoing former Secretary of State Mike Pompeo’s decision allowing settlement goods to be labeled as “Made in Israel”; reopening the US consulate in East Jerusalem, which has remained closed since President Trump shuttered it in 2019; and increasing US contributions to Palestinian civil society as a means of countering the effects of the 2018 Taylor Force Act, which slashed US funding to the Palestinian Authority. “They would all be clear, unequivocal signals that we won’t just sit here and do nothing,” Susskind said.

There is, however, no evidence that the Biden administration is considering any of the measures, big or small, that Susskind and Pinkas described. In fact, the Biden administration recently used backchannel maneuvering to avoid publicly criticizing Netanyahu’s government at the UN. In February, US officials successfully pressured the Palestinian Authority to abandon its push for a UN Security Council resolution condemning Israeli settlements—after Netanyahu’s government announced the legalization of nine outposts in the occupied West Bank and the approval of 10,000 new settlement housing units. In shutting down the resolution, the Biden administration circumvented a choice between risking a spat with Netanyahu and Israel-advocacy organizations by abstaining or flagrantly contravening its own policy preferences on settlements by maintaining its customary veto. (Although multiple US administrations have officially opposed Israeli settlement construction, there is no precedent for a US administration going beyond abstention to support such a resolution. Since 1973, the US has vetoed UN Security Council resolutions critical of Israel more than 53 times.)

To date, the starkest indication of the Biden administration’s displeasure with Netanyahu has been its withholding of a formal White House invitation to him since he returned to power. Typically, explained Pinkas, “when the secretary of state comes to Israel, he leaves behind an open invitation to visit the White House, and later they set up the dates.” But since Secretary of State Antony Blinken’s late January visit to Israel/Palestine, where he delivered a subtle rebuke of Netanyahu’s judicial reform plan, no such invitation has been extended. “That’s sort of a protest that’s taking place,” said Pinkas. This mild censure has had no perceptible effect on the Israeli government’s ongoing legislative blitz: On Monday, the Knesset advanced several of the most controversial parts of the judicial overhaul plan, including a measure that would prevent the Supreme Court from striking down any law passed with a majority of 61 votes, and another which would only allow the Court to strike down laws with a supermajority of 12 of 15 judges.

Even if Biden’s snub has telegraphed US displeasure with Netanyahu, it has not persuaded him to change his government’s course. Indeed, the Biden administration’s preference for non-confrontational measures all but ensures that Netanyahu will proceed with his coalition’s judicial overhaul. In any case, domestic political realities may leave Netanyahu little choice. He is now beholden to the hardliners within his own party and to his extremist partners within the governing coalition, whose demands he must heed to stay in power. “I don’t think he controls this anymore,” Pinkas said. The only realistic path to a different coalition configuration would be another round of elections. And that is a risk that Netanyahu—who hopes to remain in power to avoid being convicted of the corruption charges for which he is on trial—almost certainly won’t take. If this reflects the emergence of a new Israeli political paradigm, one in which the most extreme right calls the shots, the Biden administration has yet to adjust.

Ultimately, the proposed elimination of judicial review in Israel is simply not a matter on which the Biden administration is willing “to go out on a limb,” Miller explained. “The administration isn’t going to do any of these things,” he said of the various steps being discussed by opponents of the judicial overhaul, “unless the Israelis go qualitatively and quantitatively beyond anything we’ve seen before in their actions towards the Palestinians.” It is also very unusual for the US government to intervene directly in what it considers to be the domestic politics of an important ally—which appears to be how the Biden administration understands the judicial overhaul plan.

Yet in practice, the Netanyahu government’s attack on the judiciary is inseparable from the issue of the occupation. It is not the case that the former is merely a domestic matter, while the latter remains an international conflict. The settler right has not hidden the fact that the crippling of the judicial branch is meant to enable the realization of its territorial-maximalist agenda: the annexation of the West Bank and the forced transfer of Palestinians out of the territories under Israel’s control. The Biden administration’s tepid response to the Netanyahu government’s “judicial revolution” portends a similarly inadequate reaction to the eventual de jure codification of apartheid rule.

Joshua Leifer is a Jewish Currents contributing editor and a member of the Dissent editorial board. His essays and reporting have also appeared in The Guardian, The Nation, Jacobin, +972 Magazine, and elsewhere. He is currently working on a book about American Jewish identity. He lives in New Haven, CT, where he is a history PhD student.