Opinion | As Israeli President Herzog visits U.S., his nation’s politics … – The Washington Post

As Mr. Herzog meets with President Biden and addresses a joint meeting of Congress, his nation is rent by internal divisions so profound some even speak of possible civil war. The proximate cause is a proposed overhaul of the nation’s judiciary by Prime Minister Benjamin Netanyahu’s right-wing coalition government. By the tens of thousands, mostly secular Israelis have denounced it as a partisan takeover, driven by his extreme religious and nationalist coalition partners, that would eradicate minority rights or even democracy itself. Mr. Biden has sympathized with Mr. Netanyahu’s opponents and declined to meet the prime minister in the United States; Monday, the two men spoke and announced that they would get together later this year.

Both Israel’s domestic situation, and its relationship with the United States, badly need a new and creative way out of this predicament. Fortunately, seven leading constitutional scholars in Israel have crafted a proposal for such an alternative: electing a constituent assembly that would write a constitution. It is a long shot, but its boldness at least matches the deep structural issues Israel’s crisis has exposed.

We have supported a negotiated compromise, as has the Biden administration. However, talks under Mr. Herzog’s mediation have stalled. In recent days, Mr. Netanyahu has reactivated an attempt to pass one piece of the reform package in the Knesset, Israel’s parliament, and street demonstrations have resumed in response. It is evident that the impasse is rooted in a complex cultural and religious divide, between the opposition, whose protests can render the country ungovernable but which has no effective voice in Israel’s parliament, and the government, which is beholden to the far-right parties who insist on the judicial overhaul.

Part of the tragedy here is that there are indeed legitimate reasons for the concerns that critics of Israel’s judiciary have with the freewheeling, largely self-appointed role the nation’s high court plays in its political system. In a democracy that has no written constitution, however, its rulings are one of the few checks on parliamentary majorities. Israel’s secular Jews and Arab citizens see it as their shield against the demographically ascendant ultra-religious and nationalist right. Given the latter’s equally strong belief that the court, led by secular Jews, does not value its concerns, it’s unclear how the current negotiations can bear fruit. Even in the unlikely event a deal were struck, it could break down amid the next political disruption.

The country needs to set down a formula for the separation of powers in a permanent document. Israel’s founders promised one 75 years ago but never quite delivered. The proposed assembly, however, could fill that long-delayed need. It would consist of 100 members, one-third chosen by the existing Knesset, the rest elected in a national election under rules allowing for a wide cross-section of parties to win seats. The body would have two years to write a constitution. Ratification would be by national referendum.

The potential drawbacks in this approach are obvious, starting with the difficulty of getting the Knesset to approve such a plan, since it would require the Netanyahu-led coalition to surrender the upper hand in the judicial revamp it now has. An election for the assembly could devolve into yet another source of conflict. And constituent assemblies can get bogged down in factional quarrels and fizzle out, as Chile’s recent attempt at a constitutional rewrite shows.

But the potential benefits are clear, too. A constituent assembly would provide a separate, special-purpose body to discuss and make the fateful, long-postponed decisions that would otherwise overload Israel’s existing institutions; that body would have independent democratic legitimacy. The same would be true for what the eventual text of a popularly ratified constitution would say about the judiciary and the other branches. While the assembly works, Mr. Netanyahu and his allies would keep control of the Knesset, which they won, narrowly but legitimately, in 2022 — so there’s something in it for them, too.

The Biden administration would no doubt appreciate less drama and an opportunity to focus on bilateral security issues. “One of the messages I sent to the prime minister was to tap the brakes, slow down,” departing U.S. Ambassador to Israel Thomas Nides recently told the Wall Street Journal. “Try to get consensus.” That was good advice.