Israel’s Judicial Reform Crisis Reignites
Jun 29, 2023 | Amotz Asa-El
A six-month political saga seemed ready to end when the plot suddenly took a new twist, resuming in earnest the constitutional perplexity, parliamentary theatrics and political warfare that have unsettled Israeli society since last November’s general election.
The crisis was sparked by Justice Minister Yariv Levin’s unveiling of a sweeping plan to limit the Israeli Supreme Court’s power and reconfigure the selection of its justices. But the mayhem had seemed to be petering out after Binyamin Netanyahu and his circle began hinting he had decided to shelve the plan.
Constitutional reform, he said in several interviews to foreign media, will only be passed by broad agreement – which seemed to rule out legislation supported only by his ruling coalition’s narrow majority of 64 of the Knesset’s 120 lawmakers.
Netanyahu’s intentions were put to a test on June 14, when the Knesset assembled to elect its two representatives to the nine-member Judicial Selection Committee.
Traditionally – but not by law – the pair of lawmakers chosen to the Committee consists of one member from the ruling coalition and one from the opposition. The rest of the panel is made up of two ministers, including the justice minister, three Supreme Court justices, including the Court President; and two representatives from the Israeli Bar Association.
Levin’s reform plan proposed to recast that panel by deleting the Bar Association lawyers, adding two politicians – one additional lawmaker and one additional minister – and inserting two “public representatives” to be selected by the justice minister. The result would have been complete government control of all judicial appointments.
It was perhaps the most crucial, and most contentious, part of Levin’s broader judicial reform blueprint, which has triggered mass demonstrations, weekend after weekend, month after month. This opposition in the Israeli streets has been bolstered by batteries of academics, literati, bankers, retired justices, generals, ambassadors and secret-service directors, as well as world leaders, who all voiced fears that the reform would dilute or diminish Israeli democracy.
In the face of the public outcry, along with negative responses in the financial markets and an unprecedented lack of an invitation to the White House for Netanyahu, the Israeli PM began backtracking from Levin’s gambit in March.
After unprecedented mass protests following the firing of Defence Minister Yoav Gallant, who had called publicly for suspending the reforms, Netanyahu cancelled his dismissal and agreed to hold talks with the opposition over an agreed compromise package of judicial reform.
Evidently struck by the spontaneity and magnitude of the protests, Netanyahu said he would now seek a broad consensus, and agreed to take advantage of President Isaac Herzog’s offer to host talks between Netanyahu’s representatives and members of the opposition to craft a reform that could command a reasonably broad consensus.
The talks proceeded slowly but appeared to produce some progress. Netanyahu reportedly agreed to discard the plan’s highly controversial “override clause” that would have allowed a simple Knesset majority to re-legislate laws the Supreme Court had dismissed as unconstitutional.
At the same time, there appeared to have emerged an unofficial agreement that in this year’s scheduled vote over the Knesset’s representatives in the Judicial Selection Committee, the Government would work within the existing formula. In other words, the plenary would elect one representative from the coalition and one from the opposition, and the rest of the panel would remain unchanged.
This is what was widely expected to happen – a vote that would have implied Netanyahu was retreating from a reform package that had become a major political headache for him, as well as a potential international embarrassment.
However, events before, during, and after the vote turned out entirely differently. Multiple actors in this scenario failed to play their expected roles, departing from the script in three different ways.
The first to defy the script was Netanyahu himself who, on the day of the Selection Committee vote in the Knesset, decided with his colleagues in Likud’s Knesset faction to vote against all candidates for the Committee. The plan behind this manoeuvre was to delay by a month finalising the members of the Selection Committee, and thus buy more political time.
This ploy was reportedly concocted by Levin and his hard-line allies, who realised that if the Government elected an opposition representative to the Selection Committee, the reform package would effectively be all but dead and buried.
It was also an about-face that made the opposition fume, arguing that by voting against all candidates, Netanyahu was violating the tacit agreement reached that the vote for members of the Selection Committee would be held according to the existing formula.
That’s when the next surprise arose, and from a direction no one foresaw.
For his tactic to work, Netanyahu had to convince all the coalition’s seven members who had put their names forward to serve on the Selection Committee to withdraw their rival candidacies for the coalition’s lone seat on it. Six agreed, but the seventh, Likud backbencher Tali Gottlieb, refused – even after Netanyahu begged her, and reportedly even yelled at her, in a personal meeting.
The Government’s improvised last-minute strategy to temporarily avoid finalising the Selection Committee was thus derailed, and Likud arrived at the vote with a candidate who, according to the faction’s own plan, it would not back. On the other hand, the opposition had united around one candidate for its slot – former energy minister Karine Elharar from the Yesh Atid (“There is a Future”) party.
That’s when the third surprise arrived – the vote itself.
In accordance with Israel’s Law of the Judiciary, the Knesset elects its representatives for the Judicial Selection Committee by secret ballot (voting for rival candidates when the spots are contested, or for or against candidates when they are uncontested). Party discipline thus cannot be enforced.
When the ballots were opened it turned out that four coalition members had defected, electing MK Elharar to the Committee with a 58-56 majority. Equally oddly, MK Gottlieb, who was supposed to win no votes except her own, won 15 votes alongside the 59 votes against her candidacy.
Just who cast the defecting votes for both Elharar and Gottlieb, and what motivated them, has been a matter for intense speculation.
There are two Likud lawmakers – Defence and Foreign Affairs Committee Chair Yuli Edelstein and Economics Committee Chair David Bitan – who have been openly critical of the way the judicial reform plans were presented without regard for the need to build a political consensus, and of the damage this has done to Likud’s electoral prospects (some recent polling shows the Likud vote down 20%, with most of this support moving to former Defence Minister Benny Gantz and his centrist National Union party.)
Edelstein and Bitan declined to say how they voted, as did a third suspect, Defence Minister Gallant.
Whoever the defectors who supported Elharar were, they were likely concerned first and foremost with the reform’s political impact and only secondly with its substance. Personal relations with Netanyahu could also have helped motivate the defections.
Yet the votes for Gottlieb, whose candidacy he personally tried to prevent, would be even more concerning for Netanyahu. That is why he had Likud’s lawmakers assemble soon after the vote and sanction her, removing her from all parliamentary committees and forbidding her to address the plenary as a representative of Likud.
Whatever the full story behind the defections in the vote, they arguably exposed and further damaged Netanyahu’s effectiveness as coalition leader in the wake of the reform package controversy that some analysts believe was thrust on him by Levin.
Netanyahu must now be concerned that the lawmakers who voted with the opposition may be coordinating their actions – and could effectively form the nucleus of a potential anti-reform underground in his own party.
The opposition, for its part, flabbergasted by Netanyahu’s U-turn on the vote and buoyed by its surprise tactical win in the Knesset, announced it was suspending its participation in the judicial reform talks at the President’s residence until the Judicial Selection Committee is actually convened.
Such was the picture in Israel on Saturday, June 17.
Yet the following day, Netanyahu lobbed a new bombshell, announcing that he now intends to resume Knesset passage of the reform legislation, albeit in piecemeal fashion. Reportedly, the first bill the Government plans to pass would dilute the role and powers of the legal advisors that serve in every government ministry, and also limit the ability of the Supreme Court to use the “reasonableness” standard it has employed in the past when reviewing governmental appointments.
Opposition leaders Yair Lapid and Benny Gantz said in response that any unilateral judicial legislation would end their participation in the talks being led by President Herzog. Meanwhile, the activists leading the protest movement were preparing to return to the streets in full force.
The upshot is that Israel’s constitutional crisis over judicial reform appears far from over. The June 14 vote which was expected to mark the beginning of its end may turn out to have been but the end of the beginning.