Prime Minister Benjamin Netanyahu will go down in Israeli history as the head of government that tried to destroy the judiciary’s power of review and end its independence – although he knew that this put Israel’s democracy at risk. Some say that he is driven by his need to end (or cancel the possible consequences) of his trials for bribery and breach of trust. In earlier years when Netanyahu ran as a right-wing but democratic moderate, he strongly endorsed judicial independence, so this analysis of the motivation for the shift makes a lot of sense.
Others insist that he is driven by his antidemocratic coalition partners. The United Torah Judaism faction seeks a blanket exemption from conscription for haredim (ultra-Orthodox), which the Supreme Court has ruled is unconstitutional. The Shas Party seeks to have Arye Deri appointed finance minister despite two criminal convictions for bribery and tax evasion, a plan the High Court vetoed as “extremely unreasonable.” The Religious Zionist Party wants expanded settlement (and even settler violence) to be beyond judicial review.
Those who clung to the hope that the statesmanlike, democratic Netanyahu would assert himself, muted their opposition to judicial overhaul out of hope that at the end he would save the day. They held back their criticism of Netanyahu in vain. In truth, both motivations come to the same outcome. In the end, Netanyahu went with the extreme position. He will do nothing to frustrate his extremist allies out of fear that he will lose the coalition (i.e. lose his power) if he crosses them.
They thought Netanyahu would be moderate. They were wrong
Netanyahu is a tragic hero in the Greek classical mold, that is, a person of great capacity and achievement undone by one tragic, ultimately fatal, flaw. As prime minister, he has made many contributions. He kept war to a minimum. He freed up the Israeli economy, enabling hi-tech to flourish. He made national security and preventing Iran from going nuclear his signature focus.
Yet to stay in power, he stopped at nothing. He demonized leftists, inflamed Mizrachi-Ashkenazi tensions, and appealed to anti-Arab racism. He extended increasingly unlimited funding to the haredim while excusing them from teaching core subjects in schools. Thus he doomed the community to poverty and placed a burden on the Israeli economy that will not be able to sustain it within a decade.
Having sidelined Likud stalwarts or betrayed rival politicians, the only way Netanyahu could form a majority coalition was to bring in extremists and people who sympathized with – if not outright supported – settler violence and illegality.
His allies pushed to lower IDF ethical standards and reduce its efforts to minimize Palestinian civilian casualties. His allies were homophobic, racist and borderline criminal. He empowered them and funded them extravagantly to go forward with their worst tendencies – including putting a past lawbreaker (and celebrant of Baruch Goldstein, who killed 29 Arabs at prayer in a mosque) in charge of the police.
THE JUDICIAL overhaul process showed that he had no principle that he will stand on, nor any limits that he will impose on others. The security establishment, past National Security advisers (including his own), past Mossad, Shin Bet (Israel Security Agency) and military intelligence leadership, Bank of Israel presidents present and past, international credit rating agencies, hi-tech leadership and past judicial leadership all but unanimously told him that the judicial overhaul would weaken democracy, dangerously inflame divisions in Israel to the point of risking civil war, harm cohesion in the IDF and weakening its deference as well as damage relationships with United States and other key allies.
His coalition allies are irresponsible and extreme enough to ignore these warnings. They are still so enraged by Israel’s withdrawal from Gaza that they want to strike at the hi-tech and professional leaderships. But Netanyahu fully understood the negative impacts. He dumped on his own legacy and went with the extremists – placing his own need to stay in power ahead of the welfare and safety of the State of Israel.
Netanyahu’s role has been to present a respectable face for a cause which he knows is beyond the pale and which he cannot defend in its own terms. Thus he insists that to undermine judicial review is to strengthen democracy. He is upholding the rule of the majority elected MK’s over the authority of the appointed (unelected) judges. He knows that democracy entails three elements: majority rule, equality under the law and minority rights. He uses majority rule as cover even as he supports severe blows at equality before the law and assaults on minority rights.
Netanyahu’s announcement that he will stop the overhaul after revising the judicial selection committee poses as a “moderate’’ step – presumably he will not push for an override of Supreme Court decisions. Even if we take him at his word, the total politicization of selecting judges is the most damaging possible blow to equality before the law and judicial independence. It also shows the farcical nature of his claim that the public supports judicial reform. The need for genuine reform focuses on diversity (add Sephardi-background judges), improving the legal process and providing for speedy trial and swift justice. The refusal to appoint judges to fill understaffed courts (until full political control is transferred to the ruling coalition) is the opposite of needed reform.
THE PROBLEM with this indictment of Netanyahu is that he has the personal backing of almost half the Israeli population. The American Republican base believes Donald Trump and impugns the legal institutions of the United States. They support him when he places himself above the law. In parallel, Netanyahu systematically undermines respect for the Supreme Court and degrades the professional legal advisers embedded in the Israeli government to assure that it will abide by the law and uphold equality before the law.
Given his voters’ support, there is no way that Netanyahu can be dumped. The Likud Party is completely in his control. The long-term solution to this crisis – as I have argued in these pages – is to generate a national conversation between Ashkenazim and Sephardim, Left and Right, and central city and peripheral inhabitants. By building bridges and connecting and reducing polarization, the social bitterness and inflamed resentments which Netanyahu exploits will be reduced. This step would pave the way for a new national spirit of unity.
Until then, the only possible strategy to pull back from the abyss of a broken, divided nation is to work around Netanyahu. The opposition must reach out to the Likud senior leaders who see that both democracy and Likud’s standing are being damaged by present policies. The opposition should repeat that it is not seeking a “victory” and that they will take the heat of confronting judicial reform opponents who refuse any compromises.
The opposition political leaders should commit that they will work out a consensus reform that can be accepted by a substantial Israeli majority. They should promise that it will be adopted even if the High Court of Justice strikes down the “reasonableness” law. In return, they can ask the Likud service leaders to commit to not refusing to honor the court’s ruling.
But won’t the coalition’s extremists topple the government if the judicial overhaul is blocked? I submit that the answer is no. They read the polls and know that the coalition will lose its majority in a new election. Their seats will be significantly reduced by an electorate fed up with their attempted legal coup and their extremism. Furthermore, they will never get as generous and unjustified funding as Netanyahu has given them.
Netanyahu could restore balance and national cohesion now if he imposed these steps. But he is so obsessed with staying in power that he will not take the chance of reining in the extremists. The alliance of senior Likud leaders and opposition can do this for him. He is always willing to be a beneficiary of a consensus that leaves him in power.
It is urgent to contain the danger to democracy now through compromise. Then we can concentrate on future elections in which centrist, liberal democratic Israel must go all out to retake control.
The author is an American immigrant to Israel. He was a leader in Modern Orthodoxy who has written on Jewish religion and ethics, the Holocaust, pluralism, and the ethics of Jewish power.