Unnoticed, Netanyahu promises a ‘minor correction’ with devastating consequences

PM was ambiguous on how much of the overhaul he regards as ‘bad,’ but adamant that he’ll change the way we choose judges * Why does FM object to Germany’s envoy watching our court?

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 (right) speaks with Elon Musk during a live discussion on the social media platform X, at the Tesla factory in Fremont, California, September 18, 2023. (Avi Ohayon/GPO)
Prime Minister Benjamin Netanyahu (right) speaks with Elon Musk during a live discussion on the social media platform X, at the Tesla factory in Fremont, California, September 18, 2023. (Avi Ohayon/GPO)

This Editor’s Note was sent out earlier Wednesday in ToI’s weekly update email to members of the Times of Israel Community. To receive these Editor’s Notes as they’re released, join the ToI Community here.

Did Prime Minister Benjamin Netanyahu, during his live chat on Monday with X owner Elon Musk, intend to distance himself from the entire judicial overhaul legislative package as unveiled by Yariv Levin on January 4, less than a week after the coalition took office? Or was he “only” rejecting one part of it, the intended legislation that would allow a coalition majority to preemptively and/or retroactively override a High Court ruling striking down legislation?

His comments on the issue — presumably carefully prepared, since he would have expected Musk to ask him about it — were somewhat ambiguous, perhaps deliberately so. He cited aspects of the overhaul that appear to directly relate to the “override clause,” though without naming that specific planned legislation, but also appeared to address the entire package, notably when discussing his search for consensus:

“I came in [to office] and there was a proposal put in which I thought was bad, which is to reject one imbalance by creating another imbalance. If the court can rule against any decision made by the government or the parliament, then let’s not correct it by having the parliament reject any decision, with a simple majority, that the court makes. I thought that’s a mistake. It’s moving the pendulum from one side to the other side. It has to be in a happy middle. I’ve been looking for that happy middle. I have a majority in the parliament, in the Knesset, to legislate anything, but I didn’t. I held back because I want this to be a consensus,” he said.

His remarks, indeed, were apparently ambiguous enough to have troubled the spearhead of the overhaul himself, Yariv Levin. According to Channel 12’s well-connected political analyst Amit Segal, a dismayed Levin phoned Netanyahu in the US immediately after the Musk meet, prompting their Likud party to quickly issue a statement declaring that “the prime minister did not reject the judicial reforms at all. During the conversation with Elon Musk, he referred solely to [his opposition to] a sweeping override clause by a simple majority.”

But the argument over what exactly Netanyahu said and intended to say in that section of his remarks misses the point. And another, overlooked passage of his comments to Musk underlines the gravity of that misdirected focus.

The so-called “override clause” — which Netanyahu publicly told his ministers on January 8 “must” be included in the legislative package, testily promised the Wall Street Journal in June that he had thrown out, and reportedly privately assured his ministers he still supports in some form — is only one of three distinct and momentous means by which Levin’s package of legislation aims to shatter the independence of the courts, and bring them largely under the control of the governing majority, liberating our hardline coalition from the only independent brake on its powers.

Along with his planned override clause, Levin on January 4 announced that the coalition would legislate that an enlarged panel of the court’s judges, and a “special majority” on that enlarged panel, be required in order to strike down laws and government decisions — a move designed to drastically reduce the likelihood of intervention by our relatively diverse Supreme Court.

And, of course, Levin promised that the coalition would remake the Judicial Selection Committee, whose current composition he falsely claimed enables our judges to elect themselves. Making good on that promise, legislation restructuring the committee, under which the coalition would be able to appoint almost all judges throughout the court system, was formally submitted to the Knesset in March for its final votes (then frozen at that point) — and thus could, in theory, become law within days when parliament returns next month from its summer recess.

Justice Minister Yariv Levin holds a press conference unveiling his plans to overhaul Israel’s judicial system, at the Knesset on January 4, 2023. (Olivier Fitoussi/Flash90)

Largely unnoticed amid the argument and confusion over what Netanyahu meant when he spoke of the “bad” proposal that was “put in” at the start of his government’s term, were the prime minister’s comments about this revamp of the Judicial Selection Committee. This is the very core of the overhaul, since if Israel’s government chooses Israel’s judges, it has little to no need for an “override” clause or for a requirement that only special majorities on the bench can strike down legislation; it will have the judges in its pocket.

And while again asserting that he would seek consensus on the matter of how Israel appoints its judges, Netanyahu was not ambiguous at all in declaring that the process will change, and disingenuously described what he has in mind as a minor correction. If he is unable to find common ground with the opposition, he said, “then I want to do it with the public — that is to have as broad a consensus for a minor correction, basically some correction on how we choose judges, because otherwise we have, you know, basically 15 in many ways unelected officials — by the way, I think, gifted people, good people, but they replace the government. They’re sort of unelected, and they decide everything. That’s not exactly democracy.”

Netanyahu did not say that he would pass that bill in its current form, and there have been numerous reports about possible changes to its provisions, but he left no doubt that he remains committed to this central pillar of the overhaul. And his remarks on Tuesday echoed those he made in a Bloomberg interview in August: “And then [I] said I’m still going to give it several months to try and get another consensus. What is it? It would probably be about the composition of the committee that elects judges… that’s basically what’s left. Because other things, I think, we should not legislate.”

Supreme Court President Esther Hayut and other justices at a High Court hearing on the ‘reasonableness law,’ at the Supreme Court in Jerusalem, September 12, 2023. Judge Noam Sohlberg is at left. (Yonatan Sindel/Flash90)

However astonishing this may sound, it may well be that Netanyahu, having appointed Levin as justice minister, knowing that his Likud colleague had for years been working on legislation to dramatically reduce the power of the judiciary in the delicate balance of Israel’s branches of governance, was nonetheless not fully aware of what Levin was going to unveil in his revolutionary overhaul package on January 4. Netanyahu emphatically defended it once it was presented. He radically underestimated the outraged, widespread and sustained public response. He is desperate to try to resurrect his standing with the public.

But, to date, he has not overruled Levin — or, for that matter, stood up to the far-right extremists in his coalition, including Itamar Ben Gvir and Bezalel Smotrich — because he fears they would bolt and bring down his government.

And while Netanyahu, on this visit to the United States, is talking relentlessly about seeking consensus, and has sounded ambiguous about aspects of the overhaul package, he nonetheless has repeated his determination to push through the core legislation, on judicial selection.

Meanwhile, back home, Levin, the unconstrained driver of the devastating process, reportedly told a meeting of right-wing organizations in the Knesset on Monday, as he has said over and over these past almost nine months, that his “reform” package would be proceeding as envisaged. “If someone thinks the reforms should be withdrawn, halted or canceled, this will only put more pressure on the government,” he was quoted saying. “Even if there are no agreements [with the opposition], I have no intention of canceling the reforms.”

Germany in court

Germany’s ambassador to Israel, Steffen Seibert, went to the Supreme Court last week to personally watch the unprecedented 15-justice hearing on petitions against the “reasonableness” law — the only overhaul legislation enacted to date, which prevents the courts from using the legal “reasonableness” measure to review and if needed strike down government and ministerial decisions.

Speaking remarkably good Hebrew after barely a year in the post, Seibert posted a video tweet from the courtroom, headlined, “The place to be this morning #Bagatz [the Supreme Court].” “I think something important is happening here for Israeli democracy,” he said. “And we, as friends of Israel, are also looking closely with great interest at the Supreme Court. And I wanted to see for myself.”

Foreign Minister Eli Cohen, apparently regarding this as an act of unacceptable interference in internal Israeli affairs, instructed an official at the ministry to speak to Seibert and register Israel’s objections, and Israel’s embassy in Berlin to complain to the German Foreign Ministry.

Germany, unsurprisingly, backed its ambassador: “The observation of important political, also domestic, developments in their respective host countries is a central responsibility of diplomats,” it said in a statement. “The visit to a public hearing of a partner state`s Supreme Court, like the visit of Ambassador Seibert, is an excellent example of this common practice.”

So too did German Chancellor Olaf Scholz, who told journalists in New York on Monday — a day before his meeting with Netanyahu — that the ambassador “is a very committed man with very clear principles. And I believe that everyone knows that — including in Israel.”

Foreign Minister Eli Cohen at a ceremony at the Foreign Ministry building in Jerusalem, May 17, 2023. (Oren Ben Hakoon/Flash90)

Truly, the mind boggles. The representative here of one of Israel’s most supportive allies, with its very particular history, goes to watch our highest court in action, as our justices, in the glorious spirit of our democracy, hear an array of objections to a new law, and seek the wisest determination regarding legislation that affects their own authority. And for this behavior, this tweet about “something important” happening for Israeli democracy, the ambassador is admonished by our foreign minister?

Why isn’t Cohen proud for the whole world to witness Israeli democracy in action? Why does he find the ambassador’s presence and comments objectionable? What kind of an Israel would he rather the ambassador, and the rest of us, were living in?

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