Netanyahu more scared than High Court to pick justice minister - analysis

The High Court justices were terrified of being in the position of affirmatively appointing a justice minister, and effectively taking that power away from the executive branch.

APRIL 28, 2021 21:32

Israeli prime minister Benjamin Netanyahu gives a press conference with Health minister Yuli Edelstein (unseen) at the Prime Minister's office in Jerusalem, on April 20, 2021.21 (photo credit: YONATAN SINDEL/FLASH 90) — Israeli prime minister Benjamin Netanyahu gives a press conference with Health minister Yuli Edelstein (unseen) at the Prime Minister's office in Jerusalem, on April 20, 2021.21

(photo credit: YONATAN SINDEL/FLASH 90)

The High Court justices were terrified of being in the position of affirmatively appointing a justice minister, and effectively taking that power away from the executive branch.

Fortunately for them, there was one person more terrified of that possibility: Prime Minister Benjamin Netanyahu.

Now that we know that Netanyahu caved and allowed Blue and White leader Benny Gantz to reassume the Justice portfolio after a monthlong vacancy, we can better unravel some of the recent events leading to this point.

Back on April 1 when Gantz’s three-month term as temporary justice minister ended, Netanyahu was at a high point. Days later he received the 28-day mandate to form the next government, which gave him a real shot at getting to appoint a justice minister after his own heart.

What was the point of giving a bone to Gantz when the appointment might become redundant within a few weeks?

Netanyahu was also concerned that if Gantz returned to the post, he might initiate new appointments and processes that the prime minister opposed – as had happened before.

He knew that new judges could not be appointed – but how many new judges would really get appointed before a new government with a new judicial selection committee was formed?

Any other issues, like extraditions, could be put on hold also for a few weeks, until he had his new right-wing government.

Even when things did not go as planned, and his mandate seemed to be going nowhere, it was better for him to hold on to the ministry as a chip.

He later would offer Gantz the possibility of honoring their earlier prime minister rotation agreement, and holding more chips for that negotiation seemed like a good idea.

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It seems that Netanyahu did not foresee the issue of unvaccinated prisoners being marched into court in large numbers.

Until that issue was raised, the justices seemed content to slow-walk the issue.

But that issue set them on fire.

At the first hearing last Thursday on the issue of prisoners mass-spreading coronavirus infections within the court buildings, the justices reached a rare level of urgency and fury with Netanyahu’s position.

For a few hours, it seemed that they might even appoint a justice minister themselves that day.

Then something shifted.

The justices stepped back from the precipice and realized that as bad as the imminent threat of prisoners spreading corona in the courts was, their proactively taking a key executive branch power might be worse.

This was especially true when the justice minister is the executive branch’s top legal official and is involved in appointing judges.

The High Court extended Netanyahu’s time to deal with the issue until Sunday.

Only nothing happened by Sunday, other than that Netanyahu finally agreed to hold a cabinet meeting on Tuesday.

Again the justices deferred the issue – though they said a cabinet meeting could have been scheduled anytime in the past month.

Not only did that meeting not present the High Court with a viable solution, but Netanyahu tossed out a new legal conundrum as his Likud bloc voted to appoint one of its own as justice minister – even though the coalition deal they had agreed to required the ministry to be held by Blue and White.

Attorney-General Avichai Mandelblit finally switched from warning about impending disaster to demanding the High Court appoint a new minister itself to save the country from the disaster that had already arrived.

One might have thought that finally, the court would have stepped in.

But again it deferred the issue – until Wednesday.

By Wednesday, however, it was running out of excuses to defer, and seemed closer than ever to deciding the issue.

The justices likely had a sleepless night on Tuesday, as they wondered: If we order Netanyahu and the Likud to appoint Gantz, will they just ignore us like they ignored Mandelblit?

Would the High Court be even more profoundly damaged and politicized than it has been the last couple of years?

Apparently, one person maybe slept even worse – Netanyahu.

Maybe he asked himself: What if the justices overrule me just as everyone is debating whether I still have political power?

What if I get into a constitutional crisis with them and they hold a grudge against me in a future appeal relating to my criminal trial?

In addition, if he had thought fighting with Mandelblit and the High Court would distract attention from the anti-Netanyahu coalition and rally Yamina’s Naftali Bennett and New Hope’s Gideon Sa’ar to his side over judicial activism, now he saw that his battle had the opposite effect.

Bennett and Sa’ar did not view it as a judicial activism debate: They viewed it as a classic case of Netanyahu going all out to break his deal with Gantz while promising them that he would behave more nicely if they joined him.

He was crashing and burning.

It seems he decided that the embarrassment of caving and moving on was less bad than continuing to inflame the issue.

Though many think the High Court loves to intervene, this clearly saved the justices from their worst nightmare.