When Herzog’s bid to save democracy crashed into Netanyahu’s dash for absolute power

Why did the president claim much was agreed on, and the PM delay his trip, if the coalition was about to deride Herzog’s plan and denounce him?

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).

President Isaac Herzog (right) tasks Likud chairman Benjamin Netanyahu with forming a new Israeli government, at the President's Residence in Jerusalem on November 13, 2022. (Olivier Fitoussi/Flash90)
President Isaac Herzog (right) tasks Likud chairman Benjamin Netanyahu with forming a new Israeli government, at the President's Residence in Jerusalem on November 13, 2022. (Olivier Fitoussi/Flash90)

Barely a week ago, President Isaac Herzog told Israelis that in marathon behind-the-scenes discussions under his aegis, a compromise agreement on the revolutionary judicial overhaul being pushed by the coalition was “closer than ever.”

On Wednesday afternoon, Prime Minister Benjamin Netanyahu delayed leaving the country for a trip to Germany and instead remained in the Knesset in order, reportedly, to consult in person and by phone with his key coalition colleagues — Justice Minister Yariv Levin, Knesset Constitution Committee chairman Simcha Rothman, Shas leader Aryeh Deri et al — on those Herzog-brokered terms.

And yet, no sooner had the president finished presenting his framework in a national address on Wednesday night, than Likud politicians were castigating him and dismissing his ideas. Soon after, at the airport for his delayed departure, Netanyahu categorically rejected the Herzog terms, declaring that “central elements of the proposal he made just perpetuate the existing situation.” The leaders of all coalition factions then issued a joint statement denouncing the president’s plan as “one-sided, biased and unacceptable.”

And the anti-Herzog rhetoric has continued to escalate, with Likud Minister Miri Regev, for instance, deriding the proposals and assailing Herzog’s integrity: “It appears that the framework was dictated to the president of the state by the president of the Supreme Court,” she asserted. “It is an insult to the public’s intelligence. A framework that takes a clear side — against the people and its sovereign leadership.”

All of which begs quite a few questions — questions of radical import given that Herzog’s efforts were widely seen as the last vague hope of curbing the coalition’s fast-advancing legislative package, which in its current form would strip the judiciary of its independence and deny it almost all means of thwarting government excesses and protecting basic rights.

How can it be that Herzog had pronounced the sides closer than ever to compromise, and why would Netanyahu have delayed a diplomatic trip ostensibly to try to finalize those terms, when the coalition then instantly and utterly rejected the president’s proposal and concertedly set about delegitimizing him? Were the sides never actually close to an agreement? Was Netanyahu never actually seeking more consensual terms? Or did the framework publicly set out by Herzog on Wednesday night differ significantly from proposals the sides had been seriously weighing and were close to agreeing on?

President Isaac Herzog presents his proposed alternative framework on the judicial overhaul, on March 15, 2023 (Video screenshot)

As far as I have been able to ascertain, the president, precisely as he said on Wednesday night, indeed oversaw weeks of marathon consultations with politicians, legal experts and innumerable others in an intensive effort to broker a proposal on wide-ranging judicial reform, covering but also going far beyond the specific areas addressed in the coalition’s legislative onslaught.

Those consultations included deep engagement by key members of the coalition including Netanyahu, Levin and Rothman — either directly or via their trusted representatives. Opposition leaders, by contrast, were not centrally involved.

Netanyahu would have preferred, at least in theory, to reach understandings. And the various parties to Herzog’s efforts were indeed close to agreement on much of what he set out publicly.

The “People’s Agreement” that the president presented, furthermore, was his text, his language, but it faithfully represented, in broad parameters, the principles that had been discussed and many of whose specifics had been largely agreed upon.

The core problem, which should come as no surprise to anybody who has followed the devastating national turmoil precipitated by Levin’s unveiling of his legislative plans on January 4, however, was that Netanyahu and his coalition colleagues were implacably resistant to any formula under which they do not get to choose Israel’s High Court justices. The sides had not reached full agreement, either, on another core issue — the limitations on the extent of judicial review — though this might have been achievable if the coalition got its way on appointing the judges.

As the hours and the days and the weeks ticked by, with the government avowedly determined to see its legislative package enacted as law by the end of the month, Herzog came to recognize that the coalition was not going to budge on its central demand to remake the Judicial Selection Committee in its decisive favor.

He presumably concluded that he had two options. The first: To acknowledge that he had failed to broker consensual terms for reform, refrain from publishing the terms that had been discussed, repeat his conviction that the current legislation threatens Israel’s democracy and that its content and the rapid process of its passage into law spell acute, even existential danger to Israel. And to step back.

The second: To acknowledge that compromise had proven beyond reach, but to set out terms for reform that meet the genuine needs of the State of Israel and its people — the terms he had tried to broker: to establish the correct balance between the branches of government, protect the independence of the judiciary, guarantee the protection of basic rights, uphold the principles of the Declaration of Independence, and entrench a Jewish and democratic Israel.

And that’s what he did on Wednesday night.

He said in his speech that he is “not naive” and that he anticipated being castigated, but he likely underestimated how caustic the coalition’s response would be — as Netanyahu and his allies moved to try to ensure that Herzog’s terms not become the baseline for a public discussion.

He may also have been deeply naive in thinking that Netanyahu, Levin, Rothman and their colleagues would ever concede on their goal of appointing the justices — the key to a process that denies the court its independence and thus subjugates the judiciary to the will of the elected majority.

Those ostensible consultations coordinated by Netanyahu in the Knesset on Wednesday were more probably a case of the prime minister orchestrating the imminent categorical rejection of Herzog’s plan, with the depiction of the president as having taken a side and the coalition as the victim.

Reports on Wednesday afternoon that Netanyahu was inclined to accept Herzog’s terms, but was dissuaded by Levin and others, would seem hard to credit. Were the prime minister truly interested in the kind of compromise the president was attempting to finalize, few can doubt that he would have imposed his will on his political appointees. “If Netanyahu decided to do something,” said the semi-dissident Likud MK David Bitan on Thursday afternoon, “there’d be nothing Yariv Levin could do about it.”

President Isaac Herzog (right) and Prime Minister Benjamin Netanyahu in a group picture of the new government, at the President’s Residence in Jerusalem, on December 29, 2022. Also pictured, Bezalel Smotrich (left) and Miri Regev (Yonatan Sindel/Flash90)

Nonetheless, Herzog may believe that the effort was eminently worthwhile, and not futile even in its failure, since it provides the public with a blueprint for protecting democracy and stabilizing governance, even as the right, far-right, ultra-Orthodox coalition insistently barrels down a very different path.

What will likely happen now is that the coalition will redouble its legislative blitz — with little resistance from within the coalition, including the Likud Knesset faction — and the devastating rifts in most every sphere of Israeli life will widen.

Reserve soldiers and activists protest against the government’s planned judicial overhaul, in the city of Bnei Brak, March 16, 2023. (Flash90)

The High Court will likely suspend, and eventually strike down, legislation to neuter the judiciary. Some experts believe the coalition will try to avoid a head-on collision with the justices, and would not disobey direct court rulings. Others are less certain. Most recently, Netanyahu reluctantly followed the court’s order to remove Deri from ministerial office. Would he similarly comply with a ruling thwarting his legislative priority? Or would he defy the justices he is determined to control, and further stir up his supporters against them and their defenders, with still more devastating consequences for this divided nation?

What is clear is that Herzog’s effort was the last realistic prospect for consensual reform to avoid what he has repeatedly warned is our fall into the abyss, and that the Netanyahu coalition decided, immediately and derisively, to slap it aside.

The president had set out to find a solution to a constitutional crisis. But he was negotiating with the coalition that is causing it, and whose unyielding goal is executive control of the judiciary. Or, to put it in its starkest terms, he was seeking constructive reform; they are bent on absolute power.

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