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.
At a press conference on Tuesday, Bezalel Smotrich, the leader of the far-right Religious Zionism party — which is soaring in the polls ahead of the elections in less than two weeks — unveiled a program designed, he said, to heal Israel’s “sick” judicial system.
Far from seeking a cautious recalibration of the delicate separation of powers between Israel’s politicians and its courts, however, Smotrich’s intended “reforms” destroy judicial authority and assign virtually all power to the political majority of the day. They remove our justices’ capacity to strike down legislation they deem undemocratic. They remake the careful composition of the nine-member panel that selects those Supreme Court justices in the first place, enlarging the role of politicians to essentially give the justice minister and the ruling coalition control.
They also provide for the abolition of the criminal offense of “fraud and breach of trust,” which Smotrich said was too “fluid” and open to abuse by the state prosecutors whose authority he is determined to constrict. “Fraud and breach of trust” just so happens to be the charge that former prime minister Benjamin Netanyahu is facing in all three of the criminal cases he is currently battling in Jerusalem District Court (along with a bribery charge in one of them).
Smotrich denies that this “reform” is personally tailored to the legal needs of Netanyahu, in whose government he has previously served and with whose nationalist-Orthodox political “bloc” his party is affiliated. He said Tuesday that Netanyahu’s trial would continue even after the offense of “fraud and breach of trust” is abolished. However, Israeli law states that changes to the criminal code are immediately applicable, including to ongoing proceedings.
The Religious Zionism leader’s judicial demolition job would also quash the very process by which Netanyahu came to find himself on trial, by barring the investigation and indictment of a serving prime minister on matters relating to his or her professional duties. It would further deny the High Court the right to remove a Knesset member’s immunity from criminal prosecution without the Knesset’s consent. And it would remove the attorney general’s authority to file criminal indictments — instead creating a new role of prosecutor general to fill that function… a prosecutor general appointed by the justice minister.
Once the Knesset has removed the High Court’s right to strike down undemocratic legislation, Religious Zionism’s party platform states, it will advance new laws to allow the expulsion of “infiltrators ” (a reference to asylum seekers and illegal migrant workers); to exempt yeshiva students from IDF service; and to retroactively legalize West Bank settlements built on private Palestinian land — all issues where the High Court has moved to constrain the government over the years.
Not incidentally, Smotrich has said his party will be seeking the justice portfolio, among others, if the elections pan out as well for Religious Zionism as the polls are predicting; they currently show it heading to 14 seats, which would make it the third largest in the Knesset.
To some degree, we should be grateful to Smotrich for publicizing his agenda — the acceptance of which, he made clear on Tuesday, constitutes a condition for his party joining what he hopes will be a Netanyahu-led coalition after the elections. Now we know exactly what he intends to do if the electorate gives him the power.
A charismatic, dangerous provocateur
By contrast, Itamar Ben Gvir, Smotrich’s partner in the Religious Zionism alliance, has been artfully more ambivalent about some of his ambitions when, as he hopes and expects, he gains ministerial office under a new Netanyahu government.
In the past, Ben Gvir championed the goal of transferring Israel’s Arab citizens overseas; as a youngster he was a leading activist in Meir Kahane’s Kach movement; he bragged on TV, with the stolen Cadillac symbol from Yitzhak Rabin’s car in hand, about getting to the prime minister — days before Rabin was assassinated; he was convicted of incitement to racism in 2007; until quite recently, he kept a picture of Baruch Goldstein, who in 1994 massacred 29 Palestinians at prayer in Hebron’s Tomb of the Patriarchs, on the wall of his home in Hebron and has never disavowed him.
Nowadays, he claims he would not seek to expel all Arabs, only those, and their supporters, who are deemed “disloyal.”
Related op-ed, August 25, 2022: Beware Itamar Ben Gvir, rising far-right star with a destructive vision for Israel
Ben Gvir, at 46, is an energetic and charismatic politician, evidently attractive to many young Orthodox-nationalist Israelis and some in the ultra-Orthodox community. A lawyer who has represented himself and numerous far-right extremists accused of terrorism and hate crimes, he is also a relentless provocateur. Just last week, Ben Gvir pulled out a gun during clashes in an East Jerusalem neighborhood he was touring, and called on the police to open fire on Arab stone-throwers.
Much of Ben Gvir’s appeal in the current campaign apparently stems from his pledge to bolster Israelis’ sense of personal security and safety in the face of terrorism. Ironically, he did not do mandatory military service; the IDF preferred not to conscript him because of his extremist record.
It was Netanyahu who paved the path for Ben Gvir to enter the Knesset last year, imposing him and his Otzma Yehudit (Jewish Power) faction on an unwilling Smotrich. Ahead of these elections, too, Netanyahu brokered a technical merger of convenience between the two factions that can be severed once the votes are in. Ben Gvir, who saw his own support soaring in the polls, accepted the partnership because he did not want to be blamed if Smotrich and Religious Zionism, running without him, slipped below the Knesset threshold, wasting tens of thousands of crucial far-right votes.
As Smotrich on Tuesday made explicit, and Ben Gvir’s racist track record underlines, their presence in government and ministerial office, at the head of a widely supported political party, would mark a dangerous turning point for Israel — its rule of law, its democracy, its image, its reality.
Given the apparent spectacular rise of Religious Zionism in the course of this campaign — from around eight seats when it began to the 14 it polled in this week’s surveys — the prospect of Netanyahu being able to build a majority without Smotrich and Ben Gvir appears increasingly slim. The “Netanyahu bloc” is polling consistently at around 59-60 seats in the 120-seat Knesset, on the cusp of a majority. But as Religious Zionism has risen, doubtless also bolstered in part by some on the more moderate religious right struggling to find another party to vote for, Netanyahu’s own Likud has slipped — from 35 seats in the polls four months ago to about 30 now. The far-right tiger that Netanyahu unleashed is eating into his own support.
Before last year’s elections, Netanyahu said on television that, even though he was working assiduously to get Ben Gvir into the Knesset, the Otzma Yehudit leader was “not fit” to be a minister in his government, because “his positions are not mine.” In the course of this campaign, while reportedly meeting regularly with Ben Gvir, he has gone to extraordinary lengths to avoid being so much as photographed in his company, most recently reportedly refusing to take the stage at an event on Monday night until Ben Gvir, his unpalatable ally-adversary, had vacated it.
In recent weeks it had been speculated that Netanyahu might turn to his 2020 partner, Benny Gantz, after the November 1 vote, and plead with the National Unity party leader and current defense minister to again join him in government, perhaps even to take the first turn in a prime ministerial rotation, in order to save the country from a Minister Ben Gvir, and that Gantz, for all that Netanyahu tricked him last time, might feel obliged to do so in the wider national interest.
But the political arithmetic that might enable this unlikely last-ditch salvation from, say, a Justice Minister Smotrich and an Interior Minister Ben Gvir, is looking increasingly unworkable. If the polls are even close to accurate, Religious Zionism will be too strong for Netanyahu to sideline. “Religious Zionism will be part of our government,” he acknowledged in an interview on Wednesday.
Moment of truth
“If this gang gets into power, they’ll make every effort to destroy Israeli democracy, to cancel all the authority of the courts, to destroy the separation of powers in Israel,” Yair Lapid, the prime minister of the outgoing, collapsed coalition, said Tuesday after Smotrich’s press conference. “They don’t even bother to hide this anymore.”
The question is whether “this gang” will be thwarted at the ballot box.
Netanyahu heads a bloc whose core parties — Likud, Shas, United Torah Judaism and, of course, Religious Zionism — have no fear of sliding below the 3.25% threshold. Only the Jewish Home party of Ayelet Shaked, deeply unloved by Netanyahu and loathed by most on the pro-Netanyahu right for her presence in the outgoing coalition, is at risk of failure.
In the opposing bloc, by contrast, Labor resisted even a technical merger with Meretz and both are consequently at potential risk. Meanwhile, all three of the mainly Arab parties — Ra’am, Hadash-Ta’al and especially Balad — could fail to make it into the Knesset, a situation exacerbated by the unexpected collapse of the Joint List alliance. The Arab parties, which won 15 seats in 2020 when they all ran together, are currently polling at just eight seats in total and could wind up lower still.
A coalition with a dominant far-right party bent on radical change — Smotrich, it is worth noting, has previously said he hopes “to restore the Torah justice system” and for Israel to eventually become a religious state — can indeed yet be stopped, of course.
It depends on the electorate — its participation and its choices.
Will Netanyahu’s current focus on the Arab community — promising a new era in relations and vowing to tackle rampaging deadly crime, and outspending the Arab parties themselves on Arabic social media — draw Arab voters to his bloc or at least convince the Arab electorate that he is not so dangerous as to motivate them to vote for a non-Netanyahu bloc party? Turnout in the Arab sector is currently predicted at a radically low 40 percent or so.
How costly will the acrimonious dissolution of the Joint List alliance, an hour before the deadline for parties to submit their Knesset lists, prove?
Facing Netanyahu’s relentless depiction of everyone who opposes him as a leftist danger to Israel’s survival, will Lapid’s relatively high-ground campaign approach prove insufficiently stirring? For what it’s worth, a Tuesday night survey on Channel 12 claimed that 78% of Netanyahu-bloc supporters intend to actually go out and vote, compared to 72% of those who back parties in the current coalition bloc.
November 1 sees the fifth general election imposed on the Israeli electorate in under four years. As with the previous four, it is to a large extent a referendum on the experienced, highly skilled, indefatigable, and ultra-divisive Netanyahu.
But there’s a new element this time — the rapid rise in popularity of a party, allied with Netanyahu, helped by him and now also something of a threat to him, that is declaredly determined to remake, in its extremist image, fundamental aspects of Israel’s governance and orientation.
And thus, far more than in the previous four rounds, this election represents a moment of truth for our nation.
How do Israelis want to be governed? What do we want this country to look like and to stand for?
The choice is in our own hands. As one of Religious Zionism’s current campaign slogans puts it, “What you vote for, that’s what you get.”
Are you relying on The Times of Israel for accurate and timely coverage right now? If so, please join The Times of Israel Community. For as little as $6/month, you will:
We’re really pleased that you’ve read X Times of Israel articles in the past month.
That’s why we started the Times of Israel eleven years ago - to provide discerning readers like you with must-read coverage of Israel and the Jewish world.
So now we have a request. Unlike other news outlets, we haven’t put up a paywall. But as the journalism we do is costly, we invite readers for whom The Times of Israel has become important to help support our work by joining The Times of Israel Community.
For as little as $6 a month you can help support our quality journalism while enjoying The Times of Israel AD-FREE, as well as accessing exclusive content available only to Times of Israel Community members.
David Horovitz, Founding Editor of The Times of Israel