just asking questions

Can Israeli Democracy Survive Netanyahu’s Power Grab?

Demonstrators during a protest against the proposed judicial reforms in Tel Aviv on March 9. Photo: Kobi Wolf/Bloomberg via Getty Images

Benjamin Netanyahu returned to power for a record sixth term as prime minister in December by partnering with a motley crew of far-right lawmakers, some of whom hold extreme positions about Palestinians and liberal democracy. Netanyahu’s coalition holds a majority in the Knesset, Israel’s parliament, but it could be hamstrung by a Supreme Court that is seen as a possible bulwark against the government’s more extreme ideas. (The prime minister himself also faces long-standing corruption charges.)

Netanyahu’s minister of justice, Yariv Levin, has a plan to circumvent unfriendly judges: legislation that would undercut the court and severely compromise the country’s separation of powers. If enacted, his bill would allow a simple majority of the Knesset to override a court decision, give politicians the power to appoint judges, and weaken the judiciary in several other ways, with more “reforms” in the pipeline. The legislation has sparked widespread protests across Israel as well as concern from allies around the world who warn that Israel could follow the path of an illiberal democracy like Hungary. I spoke with Yuval Shany, a law professor at Hebrew University and an expert on humanitarian law, about whether the protests have had a real effect, how much the crisis is weakening Netanyahu, and how it all connects to an explosion of violence in the West Bank.

This legislation has drawn enormous protests all over the streets of Tel Aviv and other cities. It’s also prompted rebukes from American Jewish lawmakers and important supporters of Israel, like Michael Bloomberg, who usually defend the country no matter what. Do you think this backlash will have any effect in terms of the legislation getting through?
It is having an effect. There is a sense that this is a very deep political crisis and that the price tag for pushing this legislation forward is much higher than the government originally anticipated with regard to the extent of the protests within Israel, which is not only street protests. There are also army reservists who are basically saying, “We will not volunteer to serve,” and very strong economic pushback. Israeli companies are saying, “We will move our business or our capital outside Israel.” The shekel has gone down; the stock exchange has gone down. Moody’s published a warning that if this goes through, they would likely reduce the credit ranking of Israel. And the concerned voices aren’t only from Jewish America but the U.S. administration. The U.S. secretary of Defense was here, and he lectured his Israeli counterpart about democracy. You had the U.N. High Commission; there’s going to be a discussion in the European Parliament … So this is becoming somewhat of an embarrassment.

You used the word lectured. You could see that kind of thing hardening the spine of the law’s supporters with the rest of the world scolding them about their own affairs. 
There may be some purists who will circle the wagons and say, “We are going to stick with this come what may.” But I think more pragmatic politicians, including Netanyahu, understand that this may be a bridge or a couple of bridges too far and may be inclined to find a way to lower the level of the flames, to basically find a ladder to climb down from the tree. And in the last few days, there are reports that Netanyahu has been discussing ways to backtrack with the minister of justice, who is pushing for this reform. There’s already been some noises coming from the coalition this week — that they want to find a compromise or that they pass a more watered-down version of the bills that they have started pushing. So I think it is quite unlikely that the original reform would pass as it was originally envisioned.

Would the watered-down version be much milder than what’s on the table now? 
Since it was Purim last week, the holiday of dressing in costumes, some politicians have said that this is the original proposal dressed up. I wouldn’t say it’s much different. The main difference with this plan is it proposes to move into a system of judicial appointments managed by politicians, both opposition and coalition politicians, and to divide it half by half. So the coalition would get half of the seats for every term and the opposition would get half. In that respect, it’s a little bit more fair than the original proposal, which gives the coalition full control over judicial appointments, but still, for Israeli lawyers, it’s quite a shocking idea that a decision on judicial appointments would be completely relegated to the hands of politicians. Each party would nominate its own crony as Supreme Court justice, and that would lead to a complete politicization of a professional institution where judges were not affiliated with any specific party. That would be a very drastic change. So it’s a fix which creates as many problems as this it’s preferred to fix.

If the coalition has overall control over judicial appointments, it has control over all three branches of government. And then we no longer are living in a system that has meaningful separation of powers. And then you could ask yourself, “Is this still a democracy?” This new proposal doesn’t really talk about separation of powers, but it is a significant blow to judicial independence. It renders the judges dependent on the politicians that tend them to serve. And, again, in the Israeli system, where there is no strong constitution, where the Knesset could override legislation, that means that the court is significantly weakened and doesn’t serve as a strong enforcer of basic rights and even of checks and balances. It would lead sooner or later to the same outcome, where you have an eviscerated and a discredited court that is no longer able to effectively protect rights in the Israeli system.

Of course, we in the U.S. wouldn’t know anything about judicial appointments being wrapped up in politics.
What is unique about this government’s proposals is that they toured the world, and from each system, they were very careful to pick the worst rule and then blend them all together. So the idea of political appointments, which I think even for the U.S. doesn’t work so great … but the U.S. system has more safeguards because you often have a situation where the president comes from one party and the legislation is controlled by the other party and they have to negotiate.

In the system that was proposed by the government, the coalition doesn’t have to negotiate with anyone. And, of course, I mean, it’s extremely fallacious to compare the Israeli system of checks and balances to the U.S., which is a federal state. There are two houses of Congress, a strong Constitution, presidential veto, countless number of elections for office holders. It’s really very different from a centralized state where all the power is concentrated in the hands of the government of the day, including the power to change the constitution by a simple majority. So, for Americans, the idea that the 51 members of the Senate could change the Constitution — that’s what we’re confronting. A majority of one can change everything.

Do you think Netanyahu is turning off some of his supporters here? Obviously, a lot of them love this proposal, and I’m sure there’s near 100 percent approval among the fringe elements that got him elected. But he also has a broad base of support from other sectors. Is this damaging him overall?
Yeah, it is damaging him. It’s not a popular reform. You see polls in the main TV stations in Israel that suggest about a third of the public supports the reform and around 60 percent oppose it. And even within the bloc that voted for Netanyahu, it’s about 50-50. So there is a sizable segment of the population that normally votes right wing that either doesn’t care for this reform or actively opposes it. And you already see election polls coming out suggesting that, were elections to be held today, Netanyahu would lose, and quite badly.

And is there a sense that there’s going to be yet another election anytime soon? There have been so many in the past three, four years, I can’t even keep track.
So far, the opposition hasn’t actually tried to call for a new election. So this is not part of what you are hearing on the streets and in the mainstream media. I think there is a sense that it’s a bit premature. We had elections five months ago, and as you said, the country has had one every year since 2019. Initially, when this government was elected with a sizable majority of 64 seats, which in Israeli terms is quite a lot, there was a sense that it would probably last close to the full four years.

I think, today, this looks quite improbable. The judicial reform is one thing, but you also have other tensions within the government that seem to be building up. There are also tensions concerning the West Bank. Some extreme ministers, such as the minister of national security, are adding fuel to the fire with their statements, and they’re also making very strong demands and threatening not to vote for the government on some issues already. This doesn’t build well for the coalition. Normally, the first year is quite smooth sailing. With this government, they started facing problems from the first week. And also it seems that Netanyahu is less on top of things than before. He used to be quite good at keeping everyone happy, and it seems that he either doesn’t have the energy or the interest to do that. So things seem to be getting out of hand quite clearly. Last week, the fact that Netanyahu couldn’t even make it to the airport — for Israelis, I mean this like was a second-tier movie about a dictator that is trying to find a way to escape the capitol. He had to put up two helicopters in the air, one as a decoy, and the other one he boarded. And then he couldn’t meet the secretary of Defense in his office, so they had to meet in a small office room in a business next to the airport. It all looks very pathetic.

Not quite what Netanyahu envisioned when his new term began. 
This government has been very quick to alienate very large segments of the population. It’s partly because this is a government that has a strong populist element, and I think some of the ministers have not really internalized the fact that they have been elected as ministers and that they are no longer populist firebrands. They have to calm down the rhetoric, but that’s probably not something they’re used to, or maybe they’re not being coached sufficiently. So they’re constantly making these inflammatory statements.

And this is only inflaming the tensions higher and higher. So it doesn’t seem as if this is a very successful government. The fact that there is also violence, terror-related violence — their main calling card when they were elected was that they would restore calm because the previous government also had to deal with some terrorism, and some of the anger about it was directed to elect Netanyahu. But they seem to be doing a worse job in that department as well than the previous government. So it doesn’t look like any objective criteria for success. Nothing actually seems to be working for them right now.

As you mentioned, the other central problem in Israel is violence in the West Bank, which is at its highest level in many years. To what extent could the judicial overhaul, if it happens, actually inflame all the tensions with Palestinians, since the court was seen as one of their few protectors in Israeli society?
Good point. I don’t think Palestinians in the West Bank place a lot of hope in the Israeli Supreme Court. The court has protected Palestinian rights in a few cases, but in the vast majority of cases, they have sided with the government. Which goes to the framing of the court as this rival left-wing entity, which I think is completely distorted. But there are actually measures that are in the legislative administrative pipeline that could be extremely dangerous. That includes establishing new settlements, confiscating Palestinian land, deporting Palestinians from places where they live without permits, reintroduction of the death penalty, a law on deportation of family members of suspected terrorists. The list of crazy ideas that are on the table is almost endless.

The fact that you had a Supreme Court at the end of the line, and you had independent legal advisers who could shut down these initiatives at some stage or the other, was a reason why these initiatives haven’t had major momentum so far. But once the court is basically brought to its knees — and the legal advisers, which are another object of the reform, are also brought to their knees — then there is nothing in terms of institutional framework to stop these ideas from proceeding. And this could have very negative implications on the ground over and beyond the horrible damage that they will inflict on the Israeli system of values and the human-rights framework in Israel. They would also have very negative impacts in the West Bank.

This interview has been edited for length and clarity.

Can Israeli Democracy Survive Netanyahu’s Power Grab?