Over the past several weeks, Israel’s political commentators have repeatedly declared the demise of the political left. On the face of things, they are right. The polls all show that the right-religious bloc will win a comfortable majority in the Knesset elections scheduled for next March. There is no way that the left-Arab bloc will win a sufficient number of seats to form a government.
The commentators insist that given the polls, today the name of the game is the contest between the right-wing leaders. Will Prime Minister Benjamin Netanyahu and his Likud party win enough seats to maintain their dominant position? Will his opponents Gideon Sa’ar and Naftali Bennett win sufficient seats to unseat him?
With all due respect to the polls and the commentators that interpret them, the left is far from dead. True, its parties aren’t popular enough to form a government. But that has been the case since the mid-1990s. The left long ago accepted that it has lost the public. Rather than reconsider its positions, the left developed a strategy that compensates for its lack of public appeal. That strategy enables the left both to seize and wield power without public support and prevent the right from wielding the power it wins at the ballot box.
The left’s post-democratic strategy has two main components. The first is the so-called deep state. The deep state in Israel is an amalgam of senior government officials, the legal fraternity including the state prosecution, the attorney general’s office and the Supreme Court, and the media. Members of these groups are overwhelmingly associated with the left. They use their powers to advance the ideological and political goals of their camp while stymying the right’s efforts to implement its own policy and ideological agenda.
This week we were witness to two spectacles of the deep state in action.
Tuesday, the justices of the Supreme Court conducted a hearing on a number of petitions asking the justices to abrogate the 2018 Basic Law: Israel as the Nation State of the Jewish People. Despite the law’s name, the hearing wasn’t geared primarily to undermining Israel’s Jewish national identity. Israel was the Jewish state before the law, and doesn’t need the law to remain the Jewish state.
The purpose of the hearing had little to do with the law itself. Instead, as far as the justices were concerned its purpose was to stake out the claim that the Court has the right to overturn Basic Laws. To understand how radical this move is, it is important to understand the legal basis of the court’s current powers.
Israel has no constitution. At the outset of Israel’s so-called “judicial revolution” in the 1990s, the justices invented a distinction between Israel’s Basic Laws, which deal with general principles of the state, and its other laws. On their own volition and with no legal foundation, the justices called the Basic Laws a constitution. Having made this determination, the justices proceeded to arrogate to themselves the power to abrogate the non-Basic Laws, claiming the Basic Laws as the source for their extra-legal seizure of power. A significant portion of the Court’s more radical political judgments have been anchored in their radical interpretation of the Basic Law: Human Dignity and Liberty. Among other things, they have used the law as a means to erode the significance of Israel’s Jewish character.
The Knesset passed the Nation State law as a Basic Law in a bid to curb the justices’ power to exploit their radical interpretations of the Human Dignity and Liberty law. Since the Court said the source of its power is the Basic Laws, it is self-evidently barred from abrogating the source of its authority. But on Tuesday, the justices set out to do just that and so seize the Knesset’s power to legislate, as the sovereign repository of the people’s will, the quasi-constitutional foundations of the state.
To legitimize her legally groundless action, during the hearing Chief Justice Esther Hayut announced the existence of a heretofore non-existent third type of law – the law that lets Supreme Court Justices abrogate Basic Laws. She referred to her new type of law as “the doctrine of amending laws that are unconstitutional.”
Both Netanyahu and Knesset Speaker Yariv Levin stated flat out that the justices have no legal authority to discuss the constitutionality of Basic Laws. But Hayut and her comrades, and their supporters in the media, the Attorney General’s office and the left’s political parties couldn’t have cared less. They are staking a claim and there is nothing the government can do about it.
The day after Hayut’s democracy-killing Kabuki court theater, her comrades in the Attorney General’s office celebrated their own extra-legal seizure of power from Israel’s elected leaders at a farewell bash for Deputy Attorney General Dina Zilber.
Over the past decade, Zilber emerged as the symbol of the deep state’s seizure of policymaking power from Israel’s elected leaders. Whether she worked to undermine Israel’s communities in Judea and Samaria, harm religious liberty or economic freedom, Zilber repeatedly used the language of law to present her political views as law. Her actions have compelled successive unwilling governments to advance the political and ideological goals of the left while undercutting those of the right.
In her farewell address, as has long been her habit, Zilber presented her unpopular, controversial ideological positions as uncontroversial and beyond reproach.
“What is unacceptable about the goal of inserting redistributive justice into the allocation of state resources?” she asked rhetorically.
Non-rhetorically, the concept of “redistributive justice” is highly controversial and unacceptable to a large cross-section of the public. Whether redistributive justice is something the government should or should not advance is a question for voters – not unelected government lawyers – to decide.
“What is unacceptable about aspiring to be a free nation in our land?” Zilber asked.
On the face of things, nothing about the aspiration immortalized in the national anthem is objectionable. But considering the source of the question, the answer is, it depends.
It depends on who decides what “free” means. It depends on who decides how “nation” is defined. And it depends on who decides what we’re talking about when we say “our land.”
Moreover, in the Jewish nation’s free state in the land of Israel, the answer is that the public decides these things, not members of the state prosecution’s appointments committee.
As she concluded her remarks, Zilber rallied her troops to carry on her democracy defying work. “Don’t forget that you are the beautiful and the just. Many people in the silent majority are with us,” she said.
This sort of nonsense is able to pass without episode because the media supports it. The media is the main tool that enables the likes of Zilber and Hayut to seize the powers of Israel’s elected leaders. For years, the media have done their best to delegitimize every effort by right-wing politicians to advance their camp’s political and ideological goals as somehow base and corrupt. The term “political” has become a dirty word. On the other hand, “professional” – as in everything “professional” judges and government lawyers do – is objective, and right and true and just and democratic.
Ironically, the right itself – or specific factions of the right – is the second component of the left’s strategy for maintaining and expanding its power despite its lack of public support. The presence on Israel’s political scene of right-wing political factions motivated primarily not by ideology but by hatred for Netanyahu enables the political left to secure its continued relevance and it enables the institutional left to secure its power. As Israel moves toward elections, there are two right-wing parties that are largely defined not by their ideological convictions but by their hatred of Netanyahu – Avigdor Lieberman’s Yisrael Beytenu party and Gideon Sa’ar’s newly minted “New Hope Party.”
Netanyahu hating rightists empower the left politically in two ways. First, while they are ideologically aligned with the right, they are politically aligned with the left. Both Lieberman and Sa’ar have made clear they will not join a coalition led by Netanyahu. Also running is Naftali Bennett and his Yamina party, which has made clear that it will join both a left-led coalition and a right-led coalition.
Sa’ar, Lieberman, Bennett and their colleagues understand that the only way for them to form a government without Likud and Netanyahu is to form a government with the left. Consequently, these “anyone-but-Bibi” rightists are the left’s ticket to power. This unspoken, but well-understood state of affairs is the reason that the media, which has obsessively attacked Netanyahu for the past 25 years, slobbers over “anyone-but-Bibi” right-wing politicians.
Even when the “anyone-but-Bibi” camp doesn’t have the requisite number of Knesset seats to form a government, so entrenched are its right-wing members in their hatred for Netanyahu that they still empower the left. Following the April and September 2019 elections, Lieberman prevented the formation of a government and forced the country into the second and third round of elections by refusing to join a Netanyahu-led coalition.
And following the third round of elections, former Netanyahu aides and current “anyone-but-Bibi” right-wing politicians Zvi Hauser and Yoaz Hendel who broke away from two parties to join the Blue and White list, were willing to block their leftist Blue and White party from forming a post-Zionist government with the Joint Arab List. But they weren’t willing to leave Blue and White to join Netanyahu to form a right-wing government. And as a result, Netanyahu was compelled to form a coalition with Blue and White.
Blue and White’s position in the outgoing government didn’t give its leaders Benny Gantz and Gabi Ashkenazi the power to implement their leftist policies. But it did give them the power to block Netanyahu and Likud from advancing their rightist policies which Hauser and Hendel ostensibly support. Gantz and Ashkenazi torpedoed Netanyahu’s plan to apply Israel’s sovereignty to the Israeli communities in Judea and Samaria and the Jordan Valley, in accordance with US President Donald Trump’s Middle East peace plan. This week, Gantz and Ashkenazi blocked Netanyahu from bringing the young Israeli communities in Judea and Samaria to the government for formal approval. Blue and White’s Justice Minister Avi Nissenkorn has worked assiduously to expand the powers of his leftist partners in the judiciary and the state prosecution while ruling out the implementation of the Likud’s agenda of legal reform.
Given the left’s success in seizing and wielding power through its partners in the deep state and its enablers in the “anyone-but-Bibi” right, it is clear that the polls that give a significant majority of Knesset seats to right-wing parties obscure more than they reveal. The left remains the only power that competes with the Likud for power. And if Likud and its coalition partners do not win 61 seats in the upcoming elections, the left will continue to control the national agenda regardless of what the public thinks.