To judicial reform or not, that is Netanyahu’s question – opinion

Prime Minister Benjamin Netanyahu has shelved new legislation on the judicial reform package until the end of November, deferring the need to make decisions on if, and how, to proceed. But as the renewed effort to find consensus will doubtless be plagued by the same political realities that have prevented an agreement to date, in four months’ time, Netanyahu could well be back at square one. 

Like all successful politicians, Israel’s Prime Minister cannot ignore public opinion, and he assuredly knows that the ongoing crisis over judicial reform has led to a decline in support for his government. 

Former defense minister Benny Gantz, whose National Unity list only received 12 seats in the November 2022 Knesset elections, compared to Likud’s 32, has dramatically risen in the polls. Last week’s Maariv survey of voters’ preferences showed National Unity at 29 to Likud’s 28. In no recent poll has the current ruling coalition achieved a parliamentary majority. 

The public undeniably worries about turmoil inside the IDF. Of course, when Netanyahu condemns reservists who have announced they will no longer volunteer for duty, he has the support of millions of Israelis, including many outside his core base of support, who agree that the politicization of military service is both unacceptable and dangerous. 

Nonetheless, fears about valuable manpower exiting the armed forces, and the consequent degradation of combat readiness that will follow, is occurring on Netanyahu’s watch, and he knows, that as prime minister, voters hold him accountable. 

The judicial reform crisis has impacted all of Israel

Just as Netanyahu will have one eye on the situation inside the IDF, he must have the other focused on the economy. 

Netanyahu may dispute those who proclaim that judicial reform will adversely impact Israel’s economic fortunes, arguing that the opposite is true. But, irrespective of whether the critics’ analysis is correct or not, Netanyahu understands that negative hype about Israel’s economic future can create a self-fulfilling prophecy. And if, for whatever reason, the economy tanks, he can expect the public to be unforgiving. 

IN MARCH, the crisis over judicial reform had the Histadrut Labor Federation launch a national strike. That state-wide work stoppage was supported by business associations and some of Israel’s largest enterprises who simultaneously closed their doors. This formidable combination of organized labor and capital can shut down the country and is a force to be reckoned with. 

Concurrently, Netanyahu’s ultra-Orthodox and national-religious coalition partners embrace the curtailing of judicial power, having long viewed Israel’s High Court of Justice as a bastion of secular liberalism. 

Inside Likud, there are influential members who champion the reform – most prominent among them Deputy Prime Minister and Minister of Justice Yariv Levin. 

For years a Netanyahu confidant, Levin is a true believer in judicial reform, asserting that Israeli democracy suffers from a constitutional imbalance in which the judiciary reigns supreme over the legislative and executive branches. 

Unlike Levin, critics question Netanyahu’s genuine ideological commitment to the reform. They point to the Prime Minister’s statements from a decade ago, when he expressed opposition to all attempts to limit judicial authority, convinced that Netanyahu’s own indictment was the turning point in his approach. 

Netanyahu’s motivation notwithstanding, he knows that back-peddling on his government’s priority policy initiative could be seen as an acceptance of political defeat. In the contact sport that is Israeli politics, a perception of weakness can be the beginning of the end.

Voters who elected Netanyahu last November did so in faith that he would provide strong and stable leadership, and so far, with the ongoing domestic crisis, many see him as failing to deliver. 

When the government’s tenure commenced on 29 December 2022, it advocated a five-pronged program of action: In foreign affairs – preventing Iranian nuclear proliferation and normalizing relations with Saudi Arabia; and on the domestic front – enhancing public security, combating the rising cost of living, and advancing judicial reform. More than seven months later, the latter objective is often perceived as eclipsing all other parts of the agenda. 

Some senior Likudniks hold that the preoccupation with judicial reform is politically counterproductive and that Netanyahu must find a way to extricate himself so that the government can focus on other national priorities. 

On 17 July, Netanyahu spoke to US President Joe Biden on the phone – their first conversation in four months. According to the readout from the Prime Minister’s Office, Netanyahu told Biden he intended to push through the reasonableness reform and then go slow on the remainder of the package to build greater domestic consensus. 

FOR THE Prime Minister, Biden’s opposition to the reform is a factor, but not necessarily a dominant one. Longtime Netanyahu observers could rank the current tensions with Washington as nowhere near the level of acrimony that characterized his relationship with the Obama White House (when a senior administration official called the Prime Minister “chickenshit”). Some American supporters may even be counseling Netanyahu to wait out the Biden presidency. 

In any case, on 24 July, Netanyahu did exactly what he told Biden he would do. The government pushed through the reasonableness bill and immediately announced a time-out on all other judicial reform legislation. But what will Netanyahu do come November? 

During my years working on the Prime Minister’s staff, I heard him tell and retell a story from his time as finance minister (2003-05). Brainstorming with senior staff, Netanyahu listed a series of proposed economic reforms, only to be told by the assembled advisers that each recommendation could provide the unions with a pretext for a national strike. Netanyahu responded by declaring: “Good, let’s bundle the reforms together and get more reform per strike.” 

This story may have relevance today. If Netanyahu’s political opponents vigorously oppose any judicial reform, no matter how modest, as was demonstrated in their harsh reaction to the passing of the reasonableness bill, perhaps he has nothing to lose by going full steam ahead.

Netanyahu undoubtedly remembers the deep-rooted divide over prime minister Ariel Sharon’s 2005 Gaza pullout, and recalls that the acrimonious public debate subsided once the withdrawal was completed. (Even with tens of thousands of rockets launched from Gaza, there is no widespread demand to undo disengagement.) 

Barring a Saudi peace breakthrough that would require concessions to the Palestinians, Israel’s current coalition could have surprising longevity. With elections conceivably far away, can the Prime Minister conclude that when judicial reform is done, the rancor will end and the country move on? After all, does the Israeli public dwell today on Netanyahu’s once-much-criticized 2018 “nation-state” law? 

The writer, formerly an adviser to the prime minister, is chair of the Abba Eban Institute for Diplomacy at Reichman University. Connect with him on LinkedIn, @Ambassador Mark Regev.

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