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Op-edHis 5 potential coalition parties all want to rein in judges

A mandate to remake Israeli democracy: Why this Netanyahu win would be different

The only coalition he could possibly build would be the most hawkish in our history, committed to limiting the authority of Israel’s courts, bolstering the power of its politicians

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

Prime Minister Benjamin Netanyahu prior to a hearing in his corruption trial at the Jerusalem District Court, Feb. 8, 2021. (AP Photo/Reuven Castro, Pool)
Prime Minister Benjamin Netanyahu prior to a hearing in his corruption trial at the Jerusalem District Court, Feb. 8, 2021. (AP Photo/Reuven Castro, Pool)

If Prime Minister Benjamin Netanyahu emerges triumphant from Tuesday’s elections, a thoroughly realistic prospect, the superficial commentary will hail his extraordinary political survival skills.

The man who in three previous elections fought off a centrist alliance led by former IDF chief of staff Benny Gantz and hung on to power by his fingernails, it will be breathlessly noted, this time managed to defeat an array of anti-Bibi forces including two potent rivals from his own right-wing side of the political spectrum.

Yet another win, the headlines will chorus, for Israel’s indomitable prime minister.

Tribute will be paid to his indefatigable campaigning skills, to his blitz of media interviews, to his morning-to-night Election Day efforts desperately encouraging his supporters to go out and vote.

Netanyahu’s superb handling of the satellite parties loyal to him — the ultra-Orthodox Shas and United Torah Judaism, and the far-right Religious Zionism — will be contrasted with the self-defeating rivalries on the other side: Netanyahu essentially constructed the Religious Zionism alliance, brokering the deal to bring the extremist Otzma Yehudit under its aegis and thereby paving the path for it to clear the Knesset threshold to ensure no right-wing votes went to waste. In the center-left-Arab camp, by contrast, Meretz, Ra’am, Blue and White, and the New Economy parties all diced with political death because of a refusal to build alliances to defeat their common political enemy.

His victory will also, correctly, be attributed to his world-leading vaccination effort — his personal role in securing the millions of Pfizer vaccine shots that enabled Israel, by election day, to have fully vaccinated the overwhelming majority of its eligible population, and thus to have been able to largely reopen its economy while maintaining falling contagion levels and a drop in serious cases.

And his success will also be accurately ascribed to his proven ability, during an unprecedented 12 consecutive years as prime minister, to steer Israel wisely through the region’s shifting seas, minimizing the loss of Israeli life, and most recently embracing the normalization process with the United Arab Emirates at the price of shelving his plan to annex the settlements and other parts of the West Bank.

The only coalition he would be able to muster would comprise the most hawkish and conservative elements of the Israeli political spectrum, and them alone, at a time when those parties embrace more hardline policies than ever in the past

Accurate though all these commentaries would be, however, a Netanyahu victory in Tuesday’s vote would be more than just another remarkable win for the seemingly invincible Israeli political master. Because the only coalition he would be able to muster would be very different from any ruling alliance he has previously helmed, indeed different from any ruling alliance in the country’s history. It would comprise the most hawkish and conservative elements of the Israeli political spectrum, and them alone, at a time when those parties embrace more hardline policies than ever in the past.

Weaker judges, stronger politicians

In his 2009 coalition, there were Labor ministers at Netanyahu’s cabinet table. In 2013, the centrist Tzipi Livni and Yair Lapid were at his side. From 2015, the self-styled “sane right” of Moshe Kahlon’s Kulanu was present. And for the past year, the ministers of Benny Gantz’s Blue and White have held a share of power.

If Netanyahu wins on Tuesday, by contrast, his coalition will be spearheaded by his own Likud — nowadays largely opposed to any substantive effort at negotiation with and separation from the Palestinians, overwhelmingly supportive of laws to roll back the powers of Israel’s judiciary, and unswervingly personally loyal to Netanyahu himself. It will be joined by Naftali Bennett’s Orthodox-nationalist Yamina, which seeks to annex most of the West Bank.

Alongside them will be Shas and United Torah Judaism, parties that bar women from their Knesset slate, constrict their children’s education, leverage their political power to exempt ultra-Orthodox males from national service and to maximize Orthodox coercion, and consider non-Orthodox Judaism akin to idolatry.

And it will require the backing — whether inside the government or supporting it from without — of the Religious Zionism Party, whose leader Bezalel Smotrich would like Israel to become a theocracy, and whose Knesset slate includes provocateurs, racists and homophobes.

All other parties have pledged not to sit in a Netanyahu-led coalition, with the exception of Ra’am, the conservative Islamic party, which Netanyahu has ruled out.

Netanyahu swears in interview after interview that he will not advance or support legislation designed to stop his trial or suspend it for as long as he is prime minister. He is asked the question repeatedly because that answer is simply not believed. He also insisted in interview after interview a year ago, when forming the “emergency unity government” with Gantz, that he would not renege on the agreement according to which Gantz was to take over as prime minister in November 2021 — “no tricks or shticks,” he promised — but then prevented the passage of the national budget and forced the dissolution of the Knesset, ushering in Tuesday’s elections, precisely to avoid honoring their agreement.

Shas leader Aryeh Deri is also assuring interviewers that he will not support any legislative effort to halt Netanyahu’s trial. This is the same Aryeh Deri who offered a personal guarantee to Gantz that he would ensure Netanyahu honored the rotation agreement.

Naftali Bennett holds up a signed pledge not to serve in a government under Yair Lapid, on March 21, 2021 (Screen grab/Channel 20)

Naftali Bennett says he supports legislation that would protect a serving prime minister from prosecution, but also that he opposes retroactive legislation — and thus would oppose a legislative effort to extricate Netanyahu from his legal woes. But since Bennett has shown himself highly susceptible to pressure from Netanyahu in the run-up to election day — on Sunday night going so far as signing, live on TV, a pledge not to join a coalition led by Yair Lapid — one wonders how resistant he would prove to pressure from Netanyahu if he is serving, say, as Israel’s minister of defense and deputy prime minister.

In asserting that he is the victim of a political witch hunt, Netanyahu has relentlessly claimed that the Israeli law and order establishments have conspired with his political and media enemies to fabricate the charges against him. He has specified that the police are biased, that the state prosecution is politicized, and that the attorney general is weak and hostile to him, and has indicated that he does not entirely trust his judges either, saying it is his “hope” that he will get a fair trial.

There are voices across the mainstream spectrum, including jurists on the left, in favor of Supreme Court reform. But these are arguments for carefully calibrated reform in the national interest, not a reshaping tailored to retroactively meet a very particular personal need

The only coalition he could assemble is of a broadly similar mind. All five of the parties that would constitute Netanyahu’s Knesset majority support “reforming” the Supreme Court — that is, curbing the authority of the judiciary. They favor “reforms” in the process by which judges are selected. And at least two of them — Likud and Religious Zionism — include members avowedly ready and willing to initiate legislation specifically designed to extricate Netanyahu from his corruption trial. (Shas’s Deri served 22 months in jail for taking bribes, and is now facing indictment for tax offenses.)

There are arguments across the mainstream spectrum, including from jurists on the left, in favor of Supreme Court reform — motivated by a concern that the justices have become overly activist, to the point of constituting “an alternate government,” in the words of legal scholar Amnon Rubinstein, a former Meretz MK. But these are arguments for carefully calibrated reform in the national interest, not a reshaping tailored to retroactively meet a very particular personal need.

Israel’s foundational character, its essential nature, is to be at once a Jewish state and a democracy. The challenge of maintaining those two fundamentals has been complicated by Palestinian rejectionism and the sprawl of the settlement enterprise through the West Bank — respectively rendering separation from the Palestinians dangerous and increasingly impractical. If we cannot keep alive the possibility of an eventual separation, it is hard to see how we maintain an Israel both majority-Jewish and democratic.

A Netanyahu win on Tuesday, given the limited array and orientation of his potential political partners, poses a new risk to Israel’s democratic character — the danger that its separation of powers, the balance of responsibility between the judiciary, the legislature and the government, will be recalibrated, and checks and balances weakened, under a prime minister with the most direct personal interest in defanging the courts.

Victory, therefore, would indeed mark yet another dazzling triumph for the prime minister who has kept Israel safe from external threat, and played a central role in staving off the ravages of a pandemic. But this Netanyahu success, in this eve of Passover election, would be different from all other Netanyahu successes. It would yield an Israeli coalition government like no other before, with the secular, worldly, Netanyahu at once one of its most moderate figures, but also the one with the greatest personal interest in remaking Israeli democracy.

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