As judiciary fight reaches a climax, both sides set to lose
Without the support of a skeptical political center, no result in the vote on a law curbing the courts will offer any side the sustained victory it seeks
Haviv Rettig Gur is The Times of Israel's senior analyst.
Protesters are once again out in their hundreds of thousands. The ruling coalition, under intense pressure from its rightist flank, is once again grimly determined to push through legislative curbs on the judiciary.
Sunday is a day of decision, an inflection point. For the first time since the government presented its vast judicial revamp back in January and described it as its defining, signature policy, a piece of the overhaul is being debated on the Knesset floor before it is actually set to pass into law at some point on Monday or Tuesday.
It’s a profound test for both sides: of the right’s determination to pass something, anything, from its grandiose pronouncements to show its activist flank it can deliver, and of the opposition’s ability to push back and force a pause or compromise.
The clash between these two immense forces looms large. Sunday’s standoff isn’t really about the details of the proposed changes to the “reasonableness test” in judicial review. Few Israelis, even among the most vocal opponents and supporters of the bill, are talking about the law’s content. Few, indeed, have a good sense of the way the reasonableness test has been used by the courts, how that might be changed by the new legislation, and why that might be beneficial or harmful to the country.
The debate about reasonableness is more diverse and complex than the activist energy in the streets would suggest. Some scholars fear a dramatic curb to judicial protection of rights, but others, including some center-left opponents of the broader package, see in the new law a small change that won’t meaningfully weaken the courts.
But that complexity doesn’t mean the activists are wrong to be drawing bright red lines. All understand that the simple fact that it is the first hard step forward for the judicial overhaul makes this vote a tipping point in Israeli history.
To the opposition, the change to “reasonableness” is the government’s first step in a much larger illiberal turn across all the institutions of the state, and so must be opposed irrespective of its specific content. A coalition that just six months ago proposed a package of changes that even some of their architects would eventually acknowledge amounted to a curtailing of democracy cannot be trusted to limit itself to the piecemeal parts it now seeks to advance. Opposition activists may not know much about the history and past misuses of the reasonableness test, but they all know about the attempts by far-right National Security Minister Itamar Ben Gvir, the minister in charge of the police, to advance legislation granting him the power to arrest Israeli citizens without warrants. The reasonableness bill seems to them the same basic demolition job in slow motion.
To coalition supporters, meanwhile, the current bill is such a small fragment of the original intended package that it demonstrates not the right’s illiberalism but its capacity and willingness to compromise, while the opposition’s frenzied campaign against so small a change proves the inability of the center-left (and some parts of the center-right) to do the same.
The real debate, in other words, isn’t about the content of the bill. It’s about trust, or the lack of it.
The opposition, now facing a hardline right-wing government dependent on the most extreme edges of Israeli politics, cannot summon the trust in the other side — including the basic belief that any agreements will be upheld for any length of time — that is a precondition for a broad compromise. The right is so steeped in the conviction that it is beset on all sides, even after four decades of almost unbroken rule, by a leftist oligarchy stymieing it at every turn that it is ill-equipped psychologically for the kind of cross-partisan trust-building required to break the impasse. Every step toward compromise feels like a surrender and a loss.
The system, in short, is stuck. The coalition cannot stop, even if Prime Minister Benjamin Netanyahu occasionally signals to foreign audiences that he’s trying to do so, and the center-left cannot see the weakening of the judiciary as anything less than catastrophic given a government that consistently sends so many illiberal signals. The damage, in other words, will continue to grow as the country careens helplessly into a slow-motion crash.
And that’s not even the worst of it. Perhaps the greatest irony of the whole mess is that no victory is really possible. Neither side — the one forcing an unpopular overhaul down the country’s throat and the one digging in its heels against any and all reform — can possibly succeed, even if they manage to stack up some legislative victories or win an election or two on the resentments generated by the fight.
Unpopular
One of the best polls clarifying the point comes from the Israel Democracy Institute, a think tank in Jerusalem that leans left and opposes the overhaul, but whose survey numbers on these questions track closely to right-wing polls.
Its June Israeli Voice Index poll asked a simple question: Should the overhaul be halted altogether, push ahead “as is” irrespective of the opposition’s fears, or move ahead only with “broad agreement” of the sides.
The results in a nutshell: Within each camp, a slim majority (51% of coalition voters, 56% of opposition ones) want to have their way without regard to the other side. In the broader public, neither of these uncompromising positions is even close to a majority.
According to the poll, 36% of the public wants the judicial legislation to stop altogether, 25% wants it to be pushed through “as is.” And in the middle, 29% demand a “broad agreement.”
The question itself and the responses to it all highlight the extent to which it’s a fight over trust, not over the details of any single change. The overhaul itself keeps changing; opinions about it do not. The roughly one-third of the country that wants it to stop doesn’t trust the government to be acting for the country’s wellbeing; the one-quarter that insists on the overhaul “as is” has held firm even as the content of the legislation has changed. They are expressing trust in the government, not in the legislation. And the middle 29% seems to be calculating that any change that both right and center-left can agree to is probably a safe change, while any change that one side cannot accept is more likely to be a bad one.
Perhaps most interesting is the bipartisan nature of that middle ground, which is made up of 29% of coalition voters and 34% of opposition ones.
Another sign of the size and importance of this political center is public dislike of opposition activists’ “disruption” activities.
A Channel 12 poll earlier this month asked Israelis if they supported canceling the “reasonableness” test for government and ministerial decisions, as the government bill proposes. The poll found that 32% supported the idea while 42% opposed it. It then asked respondents if they supported blocking roads amid continuing protests against the government’s legislation. The opposition’s 42% (against the reasonableness law) dropped to 27% (support road blockages), while fully 68% of Israelis — equal to all coalition voters and between a third and half of opposition voters — oppose blocking roads.
The sticking power of any change depends on this vast middle ground. If the middle doesn’t support a change, the next government could easily alter it.
Indeed, National Union party chief Benny Gantz, the frontrunner among opposition parties in polls over the past few months, has vowed to overturn anything that is now passed unilaterally, saying in a statement on June 26 (and repeating the promise several times since): “In any government I establish or am a part of, I’ll make sure to cancel all the regime change laws before the new government is formed.”
Even if the right wins, it loses. It will have passed an overhaul that is unlikely to survive the first change of power, while losing it the support of the middle without which it cannot make the change stick.
And even if the opposition protesters win, they lose. They will have won yet another delay, but only a delay, while bolstering the right’s sense of frustration and failing to show the middle a willingness to compromise.
The point here isn’t to chastise. If democracy itself is at stake, how does one compromise? And conversely, if the other side can’t compromise on even what feels like the thinnest wisp of the larger reform, what point is there to negotiations? These are authentically felt fears and frustrations, the emotional substance underlying the clash.
Yet no matter how unpleasant it might seem to fearful activists, it remains a simple strategic fact drawn from nearly every poll on the subject in recent months that no real or sustained victory is possible without winning over the political center, a center that still waits for signals of trust-building and moderation no side’s activists seem able to offer.
