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What Herzog’s overhaul plan means, and the impediments to a potential breakthrough

One month after Prime Minister Benjamin Netanyahu’s coalition passed its first law to weaken judicial guardrails on its own power, and almost three months after President’s Residence-hosted negotiations between the parliamentary coalition and opposition broke down, President Isaac Herzog has confirmed a second, active discussion avenue.

A statement from the President’s Residence confirmed reports that Herzog is hosting indirect talks toward solving Israel’s current crisis over how to make changes to its judiciary, and said that the president has been “making a special effort in order to prevent a constitutional crisis, and to bring about a solution that will preserve democracy and unity among the Israeli people.”

The statement did not elaborate on the content discussed or the parties to the effort, and the President’s Residence has denied requests to elaborate on both elements.

However, Hebrew media reported a proposal that would alter the balance of power on Israel’s judicial appointments panel, in exchange for freezing additional changes to the Judicial Selection Committee’s structure for the next 18 months, among other points.

Politicians from both coalition and opposition camps hit out against the deal, with the former decrying it as capitulation to a 35-week-long mass anti-government protest movement, and the latter saying that they did not trust Netanyahu to deliver.

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What is the current proposed deal and its significance?

While the President’s Residence denied requests to comment on the deal, Channel 12 news reported Monday that the deal was focused on the Judicial Selection Committee.

President Isaac Herzog speaks during a ceremony at the Tel Aviv Stock Exchange on July 17, 2023. (Avshalom Sassoni/Flash90)

As reported, the framework is a far cry from the coalition’s original ambition to weaken a perceived left-leaning judiciary and top court. The coalition had pressed to increase its own influence over appointments to the bench, restrict which laws courts could review, and also create a mechanism for the Knesset to reinstate laws invalidated by the court or preemptively immunize bills from being voided in the first place. Coalition members have conflicting narratives over which parts of the broader reform are still in contention.

Changing the way that Israel appoints its justices is one of Justice Minister Yariv Levin’s central goals in the sweeping reform process he has spearheaded. Despite the Knesset electing its representatives to the panel in July, Levin has refused to convene the committee, saying it is an “invalid” method that is skewed toward consistently appointing justices who are ideologically opposed to the current government’s policies.

Next week, the High Court of Justice will hold a hearing on a petition to force Levin to convene the appointments panel, which the attorney general has also pressed him to do.

Channel 12 reported that Herzog’s deal would shift power within the panel, rather than changing its current makeup.

The nine-member panel is currently staffed by three Supreme Court justices, two representatives from the Israel Bar Association, three coalition politicians and one opposition lawmaker. Appointing a Supreme Court justice requires a supermajority of seven of the nine votes, requiring compromise between professional and political factions.

However, tapping the next Supreme Court president and appointing lower court judges currently only requires five votes, meaning the professional representatives could push judges through over the coalition’s disagreement.

Supreme Court President Esther Hayut and Justice Minister Yariv Levin attend the opening of the new building of Katsrin Justice Court on June 1, 2023. (Michael Giladi/Flash90)

Herzog’s proposal would reportedly raise the bar to seven votes for any panel decision, meaning that the coalition will have a veto over appointing the next Supreme Court president, an issue of considerable contention.

The Supreme Court has traditionally followed a seniority convention for determining its chief justice, and by that method, Justice Isaac Amit would be next to take the top post. In such a position, Amit, considered to be a liberal-leaning justice, would have the power to assign cases to specific justices.

Last week, conservative Justice Yosef Elron put his own name forward for the soon-to-be-vacant court president spot, challenging the seniority convention from within bench ranks.

Levin would prefer a more right-leaning court president than Amit.

In exchange, the coalition would have to enshrine in law a promise to freeze efforts to reshape the Judicial Selection Committee for 18 months, and to amend the recently passed law barring courts from evaluating the “reasonableness” of cabinet and ministerial decisions so that it becomes less sweeping.

Who backs this plan?

Herzog has been tight-lipped about the parties involved in the plan, and Netanyahu’s Likud party quickly denied any “agreement” had been reached.

As the opposition leader’s Yesh Atid party doused cold water on the reports, Levin said there was “no agreement,” and far-right coalition partners called it a capitulation — one prominent compromise advocate was notably silent.

Benny Gantz, who leads the opposition’s second largest party, National Unity, was instead set to deliver primetime remarks on Tuesday evening, leading to speculation that he may be involved in the proposal. Representatives for Gantz declined to comment.

National Unity party leader Benny Gantz at a conference in Tel Aviv, August 20, 2023. (Tomer Neuberg/Flash90)

Sources within the Prime Minister’s Office denied any agreement had been reached, and also denied that Netanyahu or his staff were directly involved.

However, some within the Prime Minister’s Office have said that the goal is to reach a solution and move on to other agenda items, including solving domestic draft issues and securing coveted normalization with Saudi Arabia.

Traveling with Netanyahu’s delegation to Cyprus earlier this week, a senior Israeli official said that the prime minister believes that “an objective agreement is easy to reach” on the judicial selection panel, but that the obstacle is “political division.”

The official would not comment on the prime minister’s posture towards the content of judicial changes, but implied that an announcement would be coming from the prime minister.

The comments were made on Monday afternoon, shortly before news broke about Herzog’s potential framework. Army Radio reported Tuesday that a source within Netanyahu’s bureau said that the leak would make a deal harder to obtain.

Prime Minister Benjamin Netanyahu at a joint statement with Cypriot President Nikos Christodoulides on September 3, 2023, in Cyprus (Amos Ben-Gershom/GPO)

Netanyahu is still bound by a conflict of interest arrangement tied to his ongoing corruption trials, first drafted in 2020 to enable Netanyahu to serve in the highest office without using his influence to affect his personal legal issues.

As such, he and his close staff are wary to acknowledge or be seen as having a role in the talks.

The High Court of Justice is also set to soon review another law by the current coalition that shields Netanyahu from being ordered to take a leave of absence, even if he were to violate terms set by the Attorney General’s Office.

Immediately after the law against forced recusal was passed in March, Netanyahu announced that he would step in to intervene in judicial policy development.

How likely is this proposal to move forward?

Levin already rejected the idea on Tuesday, calling the proposal “spin” and saying that Netanyahu backs his position.

Levin told Haredi radio station Kol Berama: “I don’t know that there was an agreement, and it is impossible to agree to the new compromise proposal.”

He continued: “[The proposal] does not change the basic thing that is required — changing the committee for selecting judges.”

Levin, whose once tight relationship with Netanyahu has suffered as a consequence of the justice minister’s hardline stance on advancing the overhaul despite the public backlash, added: “There is no change from the prime minister regarding the reform, contrary to all the reports.”

Prime Minister Benjamin Netanyahu, left, and Justice Minister Yariv Levin in the Knesset plenum during a vote on the coalition’s ‘reasonableness’ bill, July 24, 2023. (Yonatan Sindel/Flash90)

Herzog has continually pushed for broad consensus, and his office has come under fire for creating similar headlines in the past, specifically about partial agreements reached during the failed cross-Knesset talks hosted at his residence.

Speaking to Jewish leaders in Austria on Tuesday, Herzog said: “I call on [Israeli] leaders to show responsibility, to look reality in the eye, to reach out, to make an effort, not to postpone, to come together to make every effort and to try to reach a broad agreement.”

Within the Knesset, centrist opposition parties were either silent or issued weak denials, while Netanyahu’s coalition partners bristled.

According to the Ynet news site, Gantz — who will break his silence on Tuesday evening — has refused to take part in direct talks with the coalition over the issue, but has been holding conversations with Herzog in recent days.

Ynet also quoted a source in Yesh Atid saying that it was not a party to talks, adding that the “last time the President’s Residence said that the deal was agreed upon, Netanyahu then made a U-turn.”

Yesh Atid head Yair Lapid (left) with MK Karine Elharrar during a joint press conference in the Knesset, on June 14, 2023. (Yonatan Sindel/Flash90)

Party lawmaker Karine Elharrar, who represented Yesh Atid at the defunct President’s Residence talks, told Army Radio on Tuesday that her party would support the suggestion, but only after a freeze is guaranteed.

With the Knesset on recess until October 15, new legislation to anchor such a commitment would have to wait six weeks to even begin.

Meanwhile, her partner in the talks from the coalition side, Likud MK Hanoch Milwidsky, characterized the deal as “capitulation” that is “showing what’s possible to achieve through violence,” also in an interview with Army Radio.

“My personal view is that this compromise isn’t a compromise,” he said.

His remarks echoed the far-right Religious Zionism party, a strong advocate for reforming the judiciary, which said in a statement that it remains “committed to changes in the judicial system in order to preserve a Jewish and democratic Israel.”

While it said it was in favor of comprise, the party added: “The surrender of the majority to the extreme minority which is prepared to burn down the club because it lost the election — is not on the agenda.”

National Security Minister Itamar Ben Gvir, who leads the coalition’s far-right Otzma Yehudit party, posted on X that his party “will vote against any surrender which comes up for a vote.”