Reactionary Likud Politics and the Judicial Revolution
By Yarden Morad
Israel’s proposed judicial reform would be one of the most significant institutional changes in Israel’s history. The plan seeks to enable the right-wing coalition to pass almost any piece of legislation imaginable — even if it hurts Israelis’ and Palestinians’ most fundamental human rights. It proposes to: give Israeli politicians an absolute majority of the committees that appoints justices, lawyers, and judges with respect to Supreme Court nominations. Another part of the plan includes the right of the Knesset to override Supreme Court decisions if the Court doesn’t have a consensus of 80% of the judges. Furthermore, if a “basic law” is involved, the judges have no ability to intervene. The reform also seeks to eliminate the power of the judicial advisors in each ministry — ministers will no longer have to listen to their advisors. It is important to note that Israel doesn’t have many check and balance mechanisms other than the courts. The legislature is unicameral and the government almost always sets the agenda, so the concept of divided government is not relevant. There is a fusion of powers between the legislative and the executive branches. In addition, the legislature and the executive chiefs are chosen as a result of the same election method. In contrast, the U.S. House, Senate and Presidency are chosen through different votes.
As a result of the proposals, numerous academics, economists, high tech entrepreneurs, and former judges have voiced concern that without these vital checks and balances, Israel will struggle to stay democratic and prosperous. Furthermore, the Shekel, the Israeli currency, has underperformed against the dollar since the election on November 1st, and the Israeli stock market has underperformed major indices worldwide. In addition, huge protests are happening on a weekly basis and are expected to continue. Even with this kind of pushback, many Likud lawmakers and opinion leaders still pursue the reform and offer very little room for compromise.
In order to understand the roots of this extreme reform and the conviction to pursue it at almost any cost, there is no better place to start than with the governing party — Benjamin Netanyahu’s Likud. Likud used to be a center-right party and much more part of the political establishment. It was part of creating the basic law surrounding “Human Dignity and Liberty” in 1992 from which the Israeli Supreme Court derives its power to block laws. The party always had a right-wing stance on the Israeli-Palestinian conflict, but had respect for Israeli institutions and didn’t pursue divisive policy goals. Likud has also historically formed governments with Israeli center-left parties, such as Shinui in the early 2000s, and Labor and Yesh Atid in the early 2010s. These governments pursued consensus-based policy, and enjoyed support from across the Zionist political spectrum. In 2015, all of that began to change. Netanyahu’s decision to call an early election was motivated by the opposition’s (and part of the government’s) intention to create a law that would weaken the pro-Netanyahu freesheet “Israel Hayom.”
Netanyahu won the 2015 election and formed a right-wing government with Moshe Kahlon’s “Kulanu” party. In this government, reactionary politicians like Miri Regev, a former IDF spokesperson who made headlines because of her propensity for making basic mistakes in Hebrew and very embarrassing statements, got ministry appointments. Regev was not alone — there were many other reactionary MKs that got in that term, including David Bitan (Indicted on bribery charges), Miki Zohar, David Amsalem, Oren Hazan, and Amir Ohana (who now serves as the Speaker of the Knesset). An important reason for the rising reactionary sentiment in the party is Likud’s primary system. This system incentivises radicalism, as Likud politicians will say many outrageous things to get a higher place on the list. It also incentivises rising pro-Netanyahu sentiment, as he is the most popular figure in the party and young Likud politicians need his support to climb up the list. In this modern period of Likud rule, the “Nation State Law” passed. The law, largely symbolic, affirms Israel’s image as a Jewish state with no apparent reason. The law drew objections from the opposition, which demanded that a separate law which affirms equality be passed.
During that 2015 term, the investigations into Netanyahu began. Netanyahu lashed out at Israeli Police, prosecutors, the press, and every major organization he perceived as a threat. This rhetoric has shaped the discourse about these institutions ever since. These messages were also spewed on social media, which became ever more influential, and created a new medium for Likud politicians to pander to their electorate while no longer being held accountable by the press.
During the 2019 elections, the rhetoric grew ever more intense after the legal advisor to the government indicted Netanyahu with bribery, fraud and breach of trust charges. In this election cycle, Likud and Netanyahu started targeting specific journalists, which led to them being harassed by Netanyahu supporters.
After the March 2020 election and the start of the COVID-19 pandemic, Benny Gantz, former Army Chief of Staff, broke up his “Blue and White” party and joined forces with Netanyahu. The government was in constant deadlock, especially on the judicial front. Likud lawmakers and Netanyahu himself were furious with Avi Nisenkoren, Gantz’s pick for the ministry of justice. The government fell apart after seven months. That collaboration experiment strengthened the conviction among Likud politicians that no meaningful policy can be reached by joining forces with the center left. The Likud campaign slogan during the 2021 elections was “A full right wing government.”
During the Lapid-Bennett government, that conviction calcified even further as the government pursued taxes that drew criticism from their ultra-orthodox allies. Furthermore, the so-called “change” government’s unprecedented partnership with Ra’am — an Arab party — ignited anger from the right side of the arena, sparking rhetoric with strong racial undertones.
After Netanyahu’s big win in the November 2022 election, there was already consensus among Likud lawmakers, with the backing of Netanyahu, that the center left should not be a part of this government. The judicial reforms are seen as a critical building block to help right wing lawmakers pursue their policies in the purest way possible, without any consultation with prior norms or the opposition. There is also a sense among the Likudniks that their policies up to now didn’t go far enough, that today the judges truly rule — they call this “משילות” (governance in Hebrew). In other words, Likud cannot deviate from its initial positions because if it does, it will not truly govern. The status quo that favors the left “The Judicial Dictatorship,” according to them, would be maintained. That is one of the main reasons why the judicial reform fight is such a high stakes game for the right and why it keeps pursuing these goals even with the reform clearly having negative implications in many respects.
