Mixed Messages: Netanyahu Maneuvers Between Pushing Reforms and Reducing Tensions
After passing its controversial legislation reducing the power of the courts to review government actions, the governing coalition is gearing up for the next contentious step, changing the judge selection process
Israeli Prime Minister Benjamin Netanyahu has said that his government will push ahead with further planned judicial reform in the fall, despite the continued public discord over the issue. In an interview with Bloomberg News on Sunday, Netanyahu said the next step will be to change the makeup of the judicial selection committee, one of the most controversial components of the reforms.
With all democracies that have crashed, the critical element was the takeover of the process of judge selection
“This is the heart of the matter,” said Ronit Levine-Schnur, a law professor at Reichman University and the leader of the Israeli Law Professors Forum for Democracy. “With all democracies that have crashed, the critical element was the takeover of the process of judge selection. This is not just some small element. As soon as the takeover is complete, there is no longer any independent oversight on the government and it can do whatever it wants.”
Netanyahu indicated that he would seek consensus on the move. However, despite making numerous statements on the importance of such support and despite failing to reach a broader consensus, the governing coalition last month passed its first, highly controversial, piece of judicial reform legislation. All 64 coalition members in the Knesset voted in favor of the law, with the remaining members of the 120-seat parliament boycotting the vote in protest. That law, which was met with widespread alarm and mass protests, reduced the power of the courts and curtailed their ability to review and negate government legislation and appointments on the basis of “reasonableness.”
The judicial overhaul, which will change the relations between the executive and judicial branches, has been the centerpiece policy of the Netanyahu government since it took office late last year.
Those in favor of the reforms say they are a necessity as the courts have accumulated too much clout, often inserting themselves into the political debate and influencing outcomes. Israel does not have a constitution and has only one parliamentary house and a figurehead president who does not have any veto power, and those in favor of the reforms say they are needed to reduce the courts’ excessive power.
Even just a small change to the Supreme Court will turn it into a very conservative court that limits reviews on the government, which will enable it to take further steps with no breaks
Opponents believe the reforms are no less than a constitutional coup aimed at turning Israel into a dictatorship.
“Even just a small change to the Supreme Court will turn it into a very conservative court that limits reviews on the government, which will enable it to take further steps with no breaks,” Levine-Schnur said. “They keep on lying and saying it is just a minor step, but in the legal world, big changes come after small, technical changes but that are very substantial in their influence on reality.”
Last month’s vote came just before the Knesset began its summer break, forcing a pause in legislation.
Netanyahu has promised that when the Knesset returns in October, any further progress will come after seeking agreements with the opposition.
Previous attempts to negotiate a compromise failed and there appears to be little willingness on either side to reach any agreements.
“Netanyahu continues his campaign of lies in the world,” opposition leader Yair Lapid posted on his Twitter account after Netanyahu’s Bloomberg interview. “Saying ‘we will make a change in the committee for selecting judges and then stop’ is like saying ‘we will wipe out Israeli democracy completely and then stop.’”
Even before the fall session begins, more turbulence is expected for Israel.
“A lot of things could happen during this period,” said Dr. Ilana Shpaizman, of the Department of Political Studies at Bar-Ilan University.
In September, the Supreme Court is scheduled to discuss the legality of the controversial law passed last month. It is also expected to deliver a decision on a law providing that a prime minister can be deemed unfit only for health or mental reasons, and that only the premier or the government can make that decision, not the attorney general.
If the court will rule against the government, this could plunge the country into a constitutional crisis.
Netanyahu and his allies see the judge selection committee reform as a major part of their overall judicial reform plan. But in the interview, he portrayed it as a small move that once completed would put an end to the unrest that has engulfed the country.
In fact, it could do just the opposite.
Currently, the judge selection committee comprises nine members: two ministers, two Knesset members, usually from opposing sides, three Supreme Court judges, and two Bar Association lawyers, guaranteeing that no one has an automatic majority.
However, the draft legislation, which has already passed a Knesset preliminary vote, would increase the committee to 11 members, with the governing coalition having a majority of six.
It also stipulates that appointments of two judges would require a simple majority in the committee, while today seven out of the nine members need to agree on such appointments.
“This means that within a couple of days after the new Knesset session begins, the coalition can move forward with the legislation,” Shpaizman said.
Supporters of the judicial overhaul say the Supreme Court is made up predominantly of male Ashkenazis (Jews of European descent) from the country’s intellectual elite, and that many factions of Israeli society are under-represented.
Compromise on the changes seems almost out of reach, and Netanyahu is under conflicting pressures.
On the one hand, he leads the most right-wing government in Israel’s history. With far-right and ultra-orthodox Jewish parties in his coalition, he needs to deliver on promises to cement Israel’s presence in the West Bank and strengthen controversial privileges for ultra-Orthodox Jews. The judicial reform is meant to enable these moves and more.
Netanyahu is being cautious and calculated. He is trying to maneuver between all the different pressures.
On the other hand, Netanyahu is under pressure from the reform’s opponents, who include an increasingly vociferous grassroots movement as well as senior economic figures and former military commanders. In addition, the United States has warned the Israeli leader of continuing with the reforms without a broad consensus. Throughout his campaign, Netanyahu promised to normalize relations with Saudi Arabia and prevent Iran from achieving nuclear capability. For both, he needs American support, which has been gradually slipping as he pushed forward with his agenda.
“Netanyahu is being cautious and calculated,” said Abraham Diskin, professor emeritus from the Hebrew University of Jerusalem. “He is trying to maneuver between all the different pressures. He cannot not do anything regarding the reform, but he is also trying to lower the flames, realizing the terrible rift in the country.”
The wedge between Israel and the US, its main ally, has become increasingly evident, with the White House moving from behind-the-scenes expressions of concern to overt criticism of the Israeli premier. US President Joe Biden delayed inviting Netanyahu to visit, and while the two are slated to meet in September, the details have not been finalized.
Israel is on the verge of collapse and this has implications on its survivability, by weakening its military power
The debate within Israel has exposed many cracks in society, including in the previously cohesive military.
“Such a rift is unprecedented,” said Diskin. “Israel is on the verge of collapse and this has implications on its survivability, by weakening its military power.”
Netanyahu, aware of this, has chosen to give numerous interviews to foreign media while largely ignoring Israeli outlets. Except for one interview with a right-wing and largely sympathetic TV channel in April, he has only spoken to the public in televised announcements not open to journalists’ questions.
“He is very concerned with his international image, which is currently not so good,” said Shpaizman. “But in terms of democracy, this is terrible. He is choosing to ignore his public.”
For years, Netanyahu has accused the local press of bias. He has a substantial following on social media platforms and has used those platforms avidly, albeit less in recent months.
“The media is hostile to him, making any appearance not pleasant and not functional,” said Diskin, “He manages to reach audiences through other means.”
