Anatomy of a self-sabotaging reform

The judicial reformers claim to want democracy, which requires compromise, which requires trust. Why, then, did they start with such an extreme version of their reform?

Haviv Rettig Gur

Haviv Rettig Gur is The Times of Israel's senior analyst.

A demonstrator waves the Israeli flag seated on a highway while flanked by border police during a protest against plans by Prime Minister Benjamin Netanyahu's government to overhaul the judicial system, in Tel Aviv, Israel, March 9, 2023. (AP Photo/Ariel Schalit)
A demonstrator waves the Israeli flag seated on a highway while flanked by border police during a protest against plans by Prime Minister Benjamin Netanyahu's government to overhaul the judicial system, in Tel Aviv, Israel, March 9, 2023. (AP Photo/Ariel Schalit)

“Perhaps the most common of all hard-bargaining tactics,” writes Harvard Law Prof. Robert Mnookin, is what he calls “extreme claims followed by small, slow concessions.”

In his book “Beyond Winning,” Mnookin, a noted expert on negotiation, lays out the advantages of starting with an extreme offer: It protects you from “underestimating what the other side might be willing to concede.“ It also offers “anchoring advantages” — the well-studied phenomenon whereby merely uttering an extreme position resets the other side’s expectations in your favor.

It is especially useful when the other side doesn’t appear to have a clear sense of its own goals.

Yet despite these advantages, Mnookin counsels against the tactic. It can be useful when the negotiations are extremely simple, like haggling over a price. But in complex negotiations with many moving parts and stakeholders, starting out with an extreme position burns any trust you had going in.

And that can be disastrous. Complicated negotiations require a give-and-take across multiple fronts, surrendering on one issue to advance in another. It can’t happen without trust.

The extreme-position tactic therefore has a “major drawback…. It lessens the chance that a deal will be made, even when one might be possible. If an offer is too extreme or concessions too slow, the other side might conclude that the offeror is unreasonable and not serious about negotiating an agreement. They may simply walk away… Most negotiators expect some puffery, but the frustrations involved in dealing with extreme offers may damage the parties’ relationship. Although some bargainers can start off playing this game and later move to a problem-solving approach, others have so thoroughly poisoned their relationship with the other side that a shift becomes impossible.”

Incoming Prime Minister Benjamin Netanyahu (right) with incoming Justice Minister Yariv Levin in the Knesset on December 13, 2022. (Yonatan Sindel/Flash90)

A dive into the professional literature on bargaining tactics offers an eye-opening commentary on the present state of Israeli politics. Starting with an “extreme claim” is par for the course in the Knesset. Indeed, the government’s judicial shakeup, which is now roiling Israeli public life, has been described as just such an extreme-position strategy by its own supporters.

The reform no one wants

As has been exhaustively analyzed, including in this newspaper, the reform in its current iteration doesn’t merely “rebalance” the powers of the judiciary in a broader checks-and-balances system with the legislature and the executive branch. It erases the judiciary’s capacity to check the other branches altogether. And in a system where the legislature is famously weak — most lawmakers are appointed by the very party leaders who make up the executive branch — the result, critics fear, is an effective demolition of any meaningful check on government power.

The reform is thus an extreme opening position par excellence. And that’s been the assumption on the political right: that it was never meant to pass as-is.

According to the government’s defenders, everything is tactical. The reform was pushed through the first of three votes in the Knesset unchanged — to show the strength of the coalition before the inevitable negotiating process. The government then stuck stubbornly to a frenetic legislative pace, refusing to pause or slow the legislation on any of the reform’s many bills in order to allow for talks with the opposition — but only as a tactic to keep the opposition off-guard.

A reform that appears set to pass as-is, the right and its allies continue to insist, is not meant to pass as-is, but to undergo important changes that preserve checks and balances and maintain Israel’s democracy.

Any minute now.

Israelis wave national flags as they protest against the government’s controversial judicial overhaul bill in Tel Aviv on March 9, 2023. (JACK GUEZ / AFP)

Indeed, over the past month, as opposition to the shakeup was joined by petitions from renowned economists, hundreds of political scientists and growing ranks of IDF reservists and former defense chiefs all warning of its dangers, the Israeli right began to fight back with petitions of its own. Letters from conservative economists and professors and former security officials were produced that criticized the protesters and expressed support for reforming the High Court. While the opposition sounded off in the New York Times, these supporters of judicial reform repeatedly graced the pages of the Wall Street Journal.

Yet a close reading of the right-wing letters and petitions reveals a curious fact: None of them expressed support for the reform as-is. Almost without exception, there are no major right-wing expressions of support for the reforms that are actually being voted on in the Knesset. The support is always phrased as a principled backing of some form of judicial reform — of a compromise that has yet to materialize.

These right-wing expressions of “support,” then, are actually calls for dialogue. They don’t express support for the reform itself, but rather faith in the reformers’ democratic intentions.

Indeed, when challenged on the reform’s details, a great many of its most ardent public defenders suddenly turn into critics.

At the Kohelet Policy Forum, whose experts helped shape the legislation, support for the reform is now almost always couched in conditional terms. Michael Sarel, the think tank’s top economist, went public last week with warnings of the reform’s potentially dire consequences for Israel’s economy and its democratic institutions if it passes as-is.

Sarel’s critique came from deep within the conservative discourse critical of the High Court. The reformers, he wrote, “are right in their criticism of the flaws in the system of checks and balances in the current regime in Israel. They are also right in placing the main blame for these flaws in the judicial activism that has developed in Israel in recent decades.”

File: Michael Sarel, head of the Kohelet Economic Forum, April 10, 2016. (Miriam Alster/Flash90)

But the reformers are “wrong in presenting this reform as a correction that will restore the proper balances and brakes and ensure the separation of government authorities.”

He didn’t mince words. The reform — again, if it passes as-is — grants the government unlimited power, and it could “use that power in order to increase the chances of its political survival. Not by chance did the slogan ‘power tends to corrupt, absolute power corrupts absolutely’ become so accepted in political philosophy and political science.”

Voices even further right than Sarel’s, who have declined to speak publicly against the reform, say nearly identical things behind closed doors.

And as the chorus of such criticism has grown more intense, Justice Minister Yariv Levin and Knesset Law Committee chair MK Simcha Rothman, the reform’s main political authors, have repeated ever more urgently that they’ve been open to compromise from the start.

They’ve urged the opposition to come to the negotiating table and blasted it for refusing to do so.

But they have steadfastly refused to do the one thing the opposition demanded for talks to begin: Slow the breakneck speed of the legislation.

MK Simcha Rothman leads a Constitution Committee meeting at the Knesset on March 12, 2023. (Yonatan Sindel/Flash90)

From its perspective, the opposition is right to demand a freeze. If the negotiations aren’t given the time needed to conduct them seriously and to consider substantive additions — including, crucially, new checks that can replace the weakened Court — then they will amount to little more than a legitimation of the extreme version.

Yet Levin and Rothman are loath to stop the process, and their reasoning is equally sound: The Israeli political agenda is a never-ending stop-action sequence of emergencies — terrorism, destabilizing political squabbles, regional tensions, economic turbulence, and so on. If the reform is paused, sheer political inertia in other arenas may mean it is never restarted.

And so a reform that no one claims to want as-is is nevertheless advancing unchanged and at full throttle.

The medium is the message

And here’s the bad news: That’s the version of this story that the reform’s supporters are telling.

There’s a less generous version of the story, the one believed by most of the opposition. What if, they say, the extreme version isn’t a tactic; what if it’s the goal? What if that’s the reason that the reformers refuse to stop for negotiations? Or the reason Yariv Levin refused to interview in the press for two long months? Or the reason so many illiberal bills, especially from the ultra-Orthodox parties, are now on the docket waiting for the post-reform era?

A protester holds up a sign reading “Religious. Zionist. Democratic.” at a rally near Beit She’an on March 11, 2023. (Pasit Siach)

What if the purpose of the reform was never to strengthen democracy by diversifying checks and balances — if it was about that, it would do that — but rather to sweep away the last meaningful check on an executive branch already rendered over-powerful by obedient Knesset factions and a unified and loyal coalition?

Even if Levin and Rothman — two lifelong advocates of judicial reform — are acting in earnest, they are ultimately servants of illiberal bosses or coalition partners who keep revealing their illiberalism in a never-ending litany of scandals produced by the current government, from legislation by Shas that would impose a six-month prison sentence on immodestly dressed women at the Western Wall to Betzalel Smotrich’s twice-delivered suggestion that the Palestinian town of Huwara be burned to the ground. (Both have since been retracted, but only after intense public outcries.)

Meanwhile, calls for the reformers to legislate some fundamental rights missing in Israeli law, such as the right to free speech — merely as a signal of their democratic intentions — have all been rebuffed.

And on and on it goes with a dozen more such examples. To anyone not primed by political affinity to give them the benefit of the doubt, what grounds has the coalition given to believe its intentions are democratic?

So which is it? Are the pushers of judicial change, as their supporters claim, democrats posing as authoritarians or authoritarians pretending to be democrats?

More than a few Israeli commentators have noticed that either interpretation of their actions ends in the same place: That they are lying. The only question is: To whom?

Prime Minister Benjamin Netanyahu (left) with Justice Minister Yariv Levin and MK Simcha Rothman (standing) in the Knesset on February 15, 2023. (Yonatan Sindel/Flash90)

The decision to embrace the extreme-position strategy has thus proven disastrous. If the intent was democratic, then their tactics convinced half the country otherwise. If the intent was never democratic, then in pure tactical terms it foolishly generated a resistance whose resilience and intensity has caught the coalition off guard.

It seems appropriate to turn once again to a voice from deep within the Israeli right — to an avid and longstanding supporter of judicial reform who nevertheless sees a fundamental flaw in the government’s current strategy.

Yehudah Yifrach heads the legal desk at the conservative newspaper Makor Rishon. In a recent public post, he argued that the legal-constitutional crisis is eminently soluble, but the political one may not be.

“The good news is that it’s possible to resolve the constitutional crisis, since the gaps between the sides are resolvable. The less good news is that to resolve that constitutional crisis we must heal the emotional crisis, and that’s a much more complicated challenge. Because there’s never been so great a gap between the substance and the form; so great a distance between the content and the rhetoric; so great a fracture separating the light and the vessel.”

Continues Yifrach: “It’s vital to talk about emotions before talking about content. Because the judicial reform is an event happening on two parallel coordinate planes: The first is legal-constitutional, the second emotional-identitarian. The first deals with questions of constitutional law — separation of powers, appointment of judges, canceling laws, override, reasonableness, the powers of the attorney general. The second deals with character and identity, with the divide between those who want more ‘Jewish’ and those who want more ‘democratic.’

“To mobilize legitimacy for change in the first arena, the right couldn’t resist the temptation to set fire to the second. But the right didn’t expect the flames to rise so high; the left, fearful of the second [i.e., that its identity is under assault], is in a bitter war to prevent the first. The left, terrified it is losing its world in an instant, is burning bridges in talking about the first, and any second now there will be violence in the streets.”

Protesters against the judicial overhaul are detained after blocking a road near the government complex in Jerusalem, March 14, 2023 (Yonatan Sindel/Flash90)

In the end, he argues, an unnecessary war was started by the right.

“If the right had done its job properly, it would have invested much more time and thought in creating an orderly, public and transparent process, and would clarify that its intentions are to create a reform that preserves the separation of powers and balances governance with individual rights; if the right had worked wisely, it would not have expanded the warfront and charged in parallel on a whole series of insane bills, some threatening and some just opportunistic, that have no connection to the values of a responsible right,” Yifrach concludes.

The reform’s authors are extraordinarily confident people who embarked on this effort convinced there were no angles to the issue they hadn’t carefully mapped out. The center-left’s panic, they therefore believed, was a function of hysteria, or perhaps (as Netanyahu argues) a strategy to prevent not just the extreme reform but any reform.

Many others on the right aren’t so sure. Something is breaking in the country that may not be easy to repair. And it is breaking because the reformers themselves seem to have done everything in their power to undermine trust in their intentions and ultimate goals.

There are costs to employing an extreme-position strategy incorrectly, and those costs are magnified when the stakes are very high. Chief among them is the loss of trust, the risk of having “so thoroughly poisoned their relationship with the other side” that compromise becomes impossible. The country, as Yifrach put it, is on fire, and it’s not even clear that the over-clever arsonists who started it are looking for a path back from the brink.

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