Israeli Supreme Court
Israeli Supreme CourtIgal Vaisman/Shutterstock.(JNS)

In Part I: "Reforming the court,” we explored the reasons Israel’s new government put advancing judicial reform at the forefront of its right-wing policy agenda. Here in Part II, we explore the underlying tensions behind the opposition to judicial reform.

Five elections in three years

Israelis were forced to go to the polls five times in the last three-and-a-half years. Each of the elections was essentially a referendum on whether embattled Prime Minister Benjamin Netanyahu was fit to continue serving, after 15 years in office—12 of them consecutive.

Each of the elections was stained with announcements that Netanyahu was being investigated for corruption, then about to be indicted for corruption, then indicted, and then brought to trial. Cherry-picked details of the cases were illegally leaked to the press throughout the election cycles, without repercussions.

‘Crime Minister’ protests

Towards the middle of the election cycles, anti-Netanyahu protests began to emerge outside the Prime Minister’s Residence in Jerusalem, and elsewhere. When the pandemic took the world by storm, Israel—under Netanyahu’s leadership—enforced overly strict lockdowns, for a period preventing individuals from traveling more than 500 meters from their house.

For several weeks, Israelis could basically go to one of two places: to buy essential goods, including food from supermarkets and hardware stores; or to the anti-Netanyahu protests, which were protected by law.

The protest movements featured expensive printed signage, stages and sound systems. Slogans changed from week to week, with focus testing used to determine which would galvanize the most support. Some protests were themed “De-mo-cra-cy.” The slogan that stuck was “Crime Minister.”

Many of the first protesters against judicial reform over the past month, and certainly the political leaders and agitators at the forefront, were present at the anti-Netanyahu protests during the election cycles.

Flimsy corruption charges

The cases against Netanyahu are considered by many on the right to be a classic example of prosecutorial overreach and the further politicization of the judicial branch. The alleged crimes would not carry weight in American courts. One case involves Netanyahu’s receipt of gifts—most notably cigars, champagne and suits—cumulatively totaling over $270,000, over a period of more than 10 years. This is considered the least severe of the charges.

The second and third cases involve Netanyahu seeking favorable media coverage in exchange for regulatory favors. The problem with these charges is that politicians and publishers routinely trade favorable media coverage for political favors—including regulatory or legislative favors. No leader in a democratic country has ever been charged with bribery for such an exchange.

Furthermore, in one of the cases, the prosecution openly acknowledges that the quid pro quo discussed between Netanyahu and the publisher never actually took place. Yet in today's Israel, a bribery charge can be leveled even if a bribe never actualizes.

Moreover, the evidence against Netanyahu was discovered during an elaborate fishing expedition whereby members of Netanyahu’s inner circle were investigated and only then were the alleged crimes discovered—evidence that would be inadmissible in American courts.

State witnesses have claimed they were blackmailed by prosecutors. Once the trial started, the court forced the prosecution to amend its charge sheet three times. Each such incident would have constituted a mistrial in an American court. The prosecution listed 300 potential witnesses, ensuring that regardless of the verdicts, the cases would be tried over a period lasting several years, enabling the media to continuously state that Netanyahu was on trial for corruption.

The ‘change’ government

The constant protests, ongoing criminal proceedings and pounding by a predominantly left-wing media had a significant political impact. With each election cycle, new defectors from among Netanyahu’s longtime right-wing allies joined the opposition in hopes of permanently removing Netanyahu from office.

Three elections ended in deadlocks, with Netanyahu just a few seats shy of forming a right-wing government. Yet the opposition, comprising primarily left-wing parties, Arab parties and right-wing defectors was similarly unable to form a blocking coalition. After the third election—and spurred by one of the worst examples of judicial overreach, in which the court forced Knesset Speaker Yuli Edelstein to resign so the opposition could advance bills that would retroactively invalidate Netanyahu from serving—Netanyahu and challenger Benny Gantz formed an emergency unity government to prevent the bills, end the consecutive election cycles and deal with the onset of the COVID crisis.

The Netanyahu-Gantz unity alliance lasted barely a year.

After a fourth election, the opposition finally managed to cobble together a blocking government. It consisted of every member of Israel’s left wing, and a self-proclaimed anti-Zionist party, Ra’am, which is affiliated with the Southern Chapter of the Muslim Brotherhood. To form the government, the left, led by Yesh Atid Party leader Yair Lapid, needed to lure additional defectors from Netanyahu’s right-wing bloc. To do so, Lapid offered right-wing party leader Naftali Bennett the only seat he could offer him to get him to join such a coalition: the premiership.

Abuse of democracy

Bennett had stated in campaign interviews that it would be undemocratic for a party leader to become prime minister with fewer than 10 mandates. He had also signed a written pledge on live television that he would not sign a rotation agreement with Lapid, as “he was right and Lapid was left.” He lied.

Essentially, 95 percent of the country voted for someone other than Bennett, but that didn’t matter to an opposition willing to take Netanyahu out by any means necessary.

In one of the worst abuses in Israeli democracy to date, Lapid used a presidential mandate to form a government that he himself could not, and essentially crowned Bennett prime minister, though Bennett's right-wing Yamina Party had won only seven of the Knesset’s 120 seats.

Bennett and Lapid signed a rotation arrangement, and for the first time in 12 years, Netanyahu was no longer prime minister. The campaign to oust Netanyahu had finally succeeded.

Despite being knocked out of the prime minister’s residence, Netanyahu refused to resign. He opted instead to become head of the opposition and vowed to collapse the self-named “change” government.

The new ruling parties were united ideologically only by their desire to keep Netanyahu out of office. It wasn’t enough. Barely a year to the day after forming the government, Bennett resigned, as members of his own party refused to continue voting with a coalition that they perceived as overly left-wing, even with their own party leader at the helm.

Netanyahu’s return

In the fifth election, right-wing voters flocked to the polls. Together, they demanded an end to the non-stop election madness. They rejected the opposition’s attempts to block Netanyahu’s return, prosecutorial overreach, incessant media bias and a parliamentary putsch. With their votes, they demanded that the candidate who had consistently received the most electoral support throughout five consecutive elections actually form a government. And they would send every last one of Netanyahu’s opponents into the opposition.

In particular, voters punished the right-wing defectors who previously campaigned for their votes only to gift them to a predominantly left-wing opposition. Likud defectors including Gideon Sa’ar were forced to fold their nascent New Hope Party into Benny Gantz’s left-wing National Unity Party. Bennett, who had completely spurned his voter base, did not even bother to run. Bennett’s longtime colleague Ayelet Shaked and the remainder of the Yamina Party failed to cross the minimum electoral threshold.

Netanyahu and his remaining loyal right-wing coalition partners scored a stunning victory.

Netanyahu’s opponents suggest that the popular vote between pro-Netanyahu and anti-Netanyahu voters was much closer to 50-50. The spin is that they combine the left-wing and Arab blocs into one. But there aren’t two blocs in Israel. There are three; right-wing, left-wing and Arab.

The seat breakdown represents a right-wing landslide. The right won 64 seats, the left 46—an 18-seat gap. Arab parties collected 10 seats. Sixty-four Knesset members recommended Netanyahu as premier. By contrast, only 28 members nominated challenger and now head of the opposition Yair Lapid.

Full right-wing government

In Netanyahu’s 15 years in office, he had almost always formed governments including both right- and left-wing parties, essentially governing from the political center. This time, following the fifth election, parties that had consistently campaigned on an “anybody but Netanyahu” platform refused to sit with their political nemesis.

For the first time, Netanyahu was able to (and for that matter forced to) form a full-fledged right-wing government with the religious and nationalist parties. Not only had Netanyahu returned to power against the will of the opposition, the prosecution and the media, he now had a full right-wing government, no longer bound by the constraints of left-wing coalition partners.

Anti-progressive, not anti-democratic

For Netanyahu’s right-wing allies, the victory represented a first-time-in-a-generation opportunity to finally advance fully right-wing and religious-friendly policies without political obstacles, and to roll back some of the progressive policies advanced while Bennett and Lapid were briefly in office.

The Netanyahu government is without question anti-progressive. Yet progressives who now claim to be the flag bearers of democracy are thus claiming the government is anti-democratic.

The rise of Itamar Ben-Gvir

They are also claiming that the government is extremist. This is despite the fact that most of the parties in the government are coalition mainstays.

One of the biggest surprises in the fifth election cycle has been the rise of the staunchly nationalist Otzma Yehudit (Jewish Strength) Party, led by political firebrand Itamar Ben-Gvir.

Ben-Gvir is a former disciple of then-banned MK Meir Kahana, who was accused of promoting Jewish terrorism. Ben-Gvir claims to have tempered his ideology and has served for years as a successful civil rights attorney, even trying and winning cases in Israel’s Supreme Court.

Ben-Gvir ran on a platform of restoring law and order. This included promises to restore personal safety for Jews living in Judea and Samaria, increase the number of civilian gun permits and clamp down on Bedouin crime in Israel’s Negev Desert, where Bedouin routinely settle illegally, and run mafia-style protection rings aimed at extorting cash from local Jewish businesses.

Otzma Yehudit ran on a joint ticket with the Religious Zionist Party led by Bezalel Smotrich, who had served as transportation minister in Netanyahu’s previous government without much fanfare. The joint ticket was brokered by Netanyahu, who wanted to ensure that right-wing votes did not splinter. The joint party scored a major right-wing victory with 14 seats, making it the third-largest party in the government.

From the moment the election results were announced, Smotrich demanded to be named defense minister and Ben-Gvir demanded to be named National Security Minister, in charge of the police department.

U.S. intervention

The United States was insistent that Netanyahu name a moderate defense minister with significant military credentials and also cautioned against appointing Ben-Gvir as national security minister. Netanyahu succeeded in pivoting Smotrich to the post of Finance Minister, and instead named Likud Party member and former candidate for IDF Chief of Staff Yoav Gallant as defense minister.

Ben-Gvir, on the other hand, had too much leverage and so was named national security minister, to the dismay of the United States. U.S. officials have been completely boycotting Smotrich and Ben-Gvir, refusing to meet with them in Israel or in Washington.

The U.S. boycott has carried over to many mainstream Jewish organizations, which have similarly refused to meet with them. Meanwhile, the media are magnifying each of their statements to inflame tensions and public views of the pair as extremists.

The religious parties

Left-wingers claim to resent the religious parties on the basis of army exemptions for eligible men (although Smotrich and Ben Gvir's voter base overwhelmingly joins the IDF in contrast to the haredi public), who opt instead to study in state-funded institutions (some of which are accused of not enforcing rigorous attendance and excellence standards), and control over national religious institutions that refuse to adapt to progressive trends. Several left-wing parties campaign on platforms aimed at reducing religious influence.

Yet, the left would gladly sit with the religious parties if only they were willing to defect from Netanyahu’s right-wing bloc.

Meanwhile, Aryeh Deri, the head of Shas (a Sephardic religious party) has twice been convicted of corruption and forced to resign from his posts. He is back to leading the party after a suspended sentence permitted him to avoid jail time.

Netanyahu appointed Deri head of the interior and health ministries. Yet the Supreme Court ruled that it was “unreasonable” for Deri to serve in these posts due to his convictions, even though the law states explicitly that one cannot serve as minister only if one is sentenced to prison.

The coalition had sought to effectively reverse the court’s decision with legislation aimed at making the law more explicit and in forbidding the court to intervene in the premier’s appointments as members of his cabinet.

The so-called Deri Law, along with other suggested legislation that would allow ministers to accept certain gifts, are furthering opposition claims that Netanyahu and company are legislating for their own benefit.

Alternate visions

The policy gaps between Israel’s right and left are fueled by competing visions of what Israel is meant to be.

Generally speaking, the right views Israel as a unique nation that stands alone, the world’s only Jewish state, that must protect Jewish traditions and nationalist ideology against foreign influences; that should provide adequate funding and respect to Torah institutions; that supports Jewish rights to live and develop vibrant communities in the disputed biblical territories of Judea and Samaria; that opposes the creation of a Palestinian state likely to morph into a copy-cat version of failed enemy states such as Lebanon and Syria.

By contrast, the left views Israel as a progressive, modern democracy that is culturally Jewish on the basis of its Hebrew language and “Israeliness,” but predominantly secular.

Uncomfortable with Jewish nationalism, left-wingers see Israel as a liberal extension of Western Europe on the Eastern Mediterranean. They are the driving force behind much of Israel’s hi-tech startup scene. And many would prefer the creation of a Palestinian state in Judea and Samaria (commonly referred to in the international community as the 'West Bank'), in an attempt to rebuff claims of "occupation".

Demography, not democracy

For Netanyahu’s left-wing opponents, their stunning electoral defeat represents a deeper and worrying demographic turning point.

Religious (haredi and religious Zionist) and traditional right-wing voters typically have more children than secular left-wing voters, a trend that is not likely to change in the years to come. And for the first time, right-wing voters out-totaled left-wing and Arab voters combined to form an exclusively right-wing government.

While the right is now free to implement the policies it has long sought to, the left fears that if the right governs successfully, it may be in power for many years to come, leaving the left glued to the backbenches of the Knesset opposition.

Right-wing policy outline

The Israeli right seeks to continue building housing and infrastructure for growing Jewish communities in Judea and Samaria. They insist on personal security for Israeli citizens in the face of growing terrorism. They prefer to isolate the Palestinian Authority and reject the prospect of negotiations.

On complex and controversial religion-and-state issues, they seek to preserve the integrity of religious institutions and long-held norms, including a ban on public transportation on Shabbat.

For Netanyahu in particular, neutralizing Iran’s nuclear infrastructure is a primary objective.

In order to advance their agenda, they first seek to strike a new balance of power between the government and the judicial branch of government.

The right asserts that the court for years has consistently meddled in governmental affairs. They claim the court is a self-selecting, elite left-wing oligarchy that has effectively served as a check on right-wing policies.

The left asserts that the court must remain the protector of democracy and through its rulings maintain governmental checks and balances in the absence of a constitution.

The right is effectively calling the court’s bluff.

Historical turning point

Historically, for the first 30 years of the state’s existence, until the election of Menachem Begin in 1977, the left controlled the government. In those three decades, they established all of the state’s major institutions. And while the right has been the principal force in the government over the last 30 years, the major institutions, including the judicial system, top echelons of the military, labor union, academia, medical establishment and the media remain dominated by the left.

While the left has had no choice but to concede the government to a shifting voter base that favors right-wing policies, the left is unprepared and unwilling to give up on its control of state institutions.

And as Netanyahu, his allies and his voters are learning, those institutions are not only extremely powerful but together can be significantly more powerful than the government.

It is this complex web of political developments over the past four years that immediately preceded, and hangs as a dark cloud over the rollout of judicial reform legislation.

Note: Part III will delve into the anatomy of the protest movement, and the sequence of events that nearly led Israel to a breaking point.

Alex Traiman is CEO and Jerusalem Bureau Chief of JNS.