Where is the High Court going with the fate of Netanyahu? – analysis

The days of a truly activist court are long gone.

By YONAH JEREMY BOB
Prime Minister Benjamin Netanyahu (photo credit: REUTERS)
Prime Minister Benjamin Netanyahu
(photo credit: REUTERS)
Sometimes the High Court of Justice surprises. But every sign that the justices dropped from their comments on Thursday indicated that at least a majority of six justices would green-light Benjamin Netanyahu to form the next government, and possibly a much larger majority.
Questions and comments from the court’s conservatives and moderates, Justices Noam Sohlberg, David Mintz, Neal Hendel and Yitzhak Amit, made it very clear that they would vote in favor of Netanyahu.
Moderate-activists High Court President Esther Hayut and Vice President Hanan Melcer are sometimes swing votes who go conservative on a variety of issues, especially if they view the stakes as being too high to take on the political echelon.
That would get Netanyahu to six out of 11. The views of Justices Menachem Mazuz, Uzi Vogelman, Anat Baron and Daphna Barak-Erez, often identified as more activist, were less clear as they shot off hard questions to both sides.
Justice George Kara said almost nothing, and while he is viewed as moderate-activist to activist, he is also new and unpredictable.
So the most likely scenarios are a vote of 6-5 or 8-3 for Netanyahu, with an outside shot of a unanimous vote in his favor.
A unanimous vote would likely occur if the justices feel they need to insulate the judicial branch and present a definitive and unified front in the face of expected criticism.
Why will a panel of justices that is 7-4 activists or moderate-activists keep in power the prime minister who has come closest to undermining them and the legal establishment in general?
Some of it is strategy and reading the political map.
While there is still a large minority bloc in the country that rejects Netanyahu under any circumstances, more than 60% of the country and more than 70 out of 120 MKs in the Knesset support the unity deal.
A decent bloc of supporters has disdain for Netanyahu but has decided it is the only way to end 18 months of political stagnation and to avoid a fourth election. But it also recognizes he has performed well during the coronavirus crisis overall.
Ending these crises were a key argument by Blue and White and Attorney-General Avichai Mandelblit to the High Court of Justice for why to accept Netanyahu as prime minister.
These are not straightforward legal considerations, and the High Court will take criticism for selling out the values of combating conflicts of interest, corruption and of upholding the rule of law if it clears Netanyahu.
But even as the High Court is more likely to consider politics and the balance of power between branches of government than lower courts, the justices are still top jurists and would not green-light Netanyahu without a doctrine to go on.
It appears that the moderate activists who will give Netanyahu his majority have settled on the ideas that: 1) the closest explicit law on the issue only ousts a prime minister upon conviction, not indictment; 2) they can keep alive their decades-old judicial precedent of firing indicted ministers, because prime ministers are different because toppling them ends the entire government; 3) even if the MKs who passed the law never intended to let someone like Netanyahu indicted for bribery to continue in office, the fix for that must be by Knesset action, not judicial action.
This last point is telling about how much more moderate the High Court has become since the age of Aharon Barak and Dorit Beinisch.
When the lawyers seeking to disqualify Netanyahu started to raise larger principles, such as that Israeli democracy might fall apart if the High Court cleared a man indicted for bribery to run the country, the justices unceremoniously waved off the arguments as irrelevant populism.
For a case that really does go to the heart of how Israel defines its democracy and the rule of law, the justices were strikingly attached to the technicalities and formal interpretations of the law.
One lawyer read from Barak’s book on judicial interpretation, expounding the view that justices sometimes must step into areas where the law is quiet to save the country from itself.
These words fell flat on the justices in the Hayut era and likely would have in the Miriam Naor and Asher Grunis eras.
True, the right wing has never been as angry with the High Court as it is today.
But this is likely more because the right wing has become more assertive and willing to challenge the High Court even as the justices have tried to shift somewhat toward the center to avoid a Knesset decision to clip their wings.
Yes, the High Court has issued a bunch of controversial decisions lately.
But on the largest issues: the Settlements Regulations Law, the Jewish Nation-State Law, the ultra-Orthodox being drafted into the IDF – the High Court has found ways to indefinitely delay forcing a resolution.
If the High Court was still in the Barak era, it might have disqualified Netanyahu when he was at his weakest after Gantz won the second election.
Instead, the High Court avoided ruling on several petitions to disqualify Netanyahu over seven months until it could throw up its hands in May 2020 and say this is who 70 MKs, including Gantz and Mandelblit, have picked, so what can we do?
Even with the numerous rulings the High Court has issued against state migrant policy, it always did so on a heavily delayed basis – leading around half of the 60,000 migrants in the country to leave before it even ruled.
The recent ruling for migrants to keep a part of their deposit did nothing to change the overall state approach of encouraging migrants to leave, as opposed to the High Court’s suggestion years ago to integrate them.
And so a High Court endorsement (however grudging) of Netanyahu should not surprise anyone.
The days of a truly activist court are long gone.
These days, the only question is whether conservatives will eventually complete a total takeover, or whether it will remain moderate-activist now that Blue and White has taken the Justice Ministry.