June 23, 2023 Update
The fundamental endeavor of the judicial coup advanced by the current coalition in Israel is to take over the judiciary through the appointment of politically affiliated judges. This week saw an unprecedented, substantial victory in the battle to preserve the judiciary’s independence.
An extraordinary outpouring of support from pro-democracy advocates resulted in a landslide win for the pro-democracy candidate, Amit Becher, during the Lawyers’ Bar Association elections. Under Israeli law, the Bar's elected national council is empowered to choose two of the nine members of the Judicial Appointment Committee.
The coalition supporting the judicial coup had endorsed Effi Naveh, the Bar's former head, who resigned in 2019 following a charge and subsequent conviction for illegal entry into Israel. Naveh, if victorious, would have facilitated the current coalition's grip on the judge appointment process. However, democracy scored a victory with Naveh's defeat and also with the appointment earlier this month of opposition Knesset member Karine Elharar from Yesh Attid to one of the two seats allocated to the Knesset on the Judicial Appointment Committee.
While the current coalition can appoint three of the remaining committee members, two members from the government and one from the coalition, they will not maintain full control over judicial appointments.
The Lawyers Bar Association election carries another optimistic, vital implication. It served as an extraordinary rallying point against the judicial coup, with voter turnout quadrupling compared to previous elections. This surge in participation was driven by the bar members' recognition of the election's implications on the independence of the judiciary. Although the 77,000 members of the Israeli Lawyers Bar may not exactly represent the general populace, the results can be seen as a significant poll that the government cannot entirely dismiss.
However, despite the encouraging developments, the coup remains far from defeated. Prime Minister Benjamin Netanyahu has declared the government's intent to advance another aspect of the judicial coup: removing the courts' authority to scrutinize government decisions based on a criterion of unreasonableness. A committee led by Simcha Rothman is slated to push for this legislation in the coming week. If passed, it will grant the government unchecked authority to make the most extreme decisions, devoid of judicial oversight.
A significant development this week came from Netanyahu’s trial. The traditionally taciturn panel of three judges strongly encouraged a plea bargain. The judges intimated that the evidence supporting the bribery charge against Netanyahu—the most severe offense in the indictment—was far from robust. Nonetheless, the push for a plea bargain implies that the evidence supporting two counts of breach of trust against Netanyahu appears to be compelling.
A plea bargain would entail Netanyahu pleading guilty to some of the criminal allegations, with the prosecution thus far asserting that Netanyahu must also resign as part of such a deal. The potential repercussions of such an event on the judicial coup remain uncertain.
One scenario is that Deputy Prime Minister, Yariv Levin, the architect of the judicial reform, might strive to garner the support of the current coalition and replace Netanyahu without holding another election. Alternatively, the Likud party might elect a less radical figure such as Minister of Economic Affairs Nir Barkat, who may seek a coalition with center parties, again without new elections. The third scenario might see the coalition disintegrate and lead to general elections, which, considering current polling, could result in a center-right government less inclined to advance the judicial coup.
Given that Netanyahu’s trial is projected to last for at least another two years at its current pace, Netanyahu is under no immediate pressure to finalize a plea bargain. Meanwhile, discussions under the guidance of President Herzog, aimed at reaching a consensus on democratic reform, have stalled, and the judicial coup seems to be resuming with full force.
Dr. Ido Baum is the legal commentator of the daily newspaper TheMarker. He is an associate professor of law at the Haim Striks Law Faculty at the College of Management in Israel and heads the Louis Brandeis Institute for Society, Economy, and Democracy. He is also a contributor to USA for Israeli Democracy.