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Episode 69: Israel's great divide - An insider's look at the judicial reform, with Moshe Koppel
01:37:18
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- [00:05]
A
Hi, everybody. Welcome to a very special episode of Ask Aviv. Anything fascinating conversation that I have been dying to get into for a while. I have with me Professor Moshe Koppel. Professor Koppel is chairman of the Kohelet Forum, which has been one of the main, I would say, brain trusts of the Israeli right in pushing the judicial reform. There has been a tremendous amount of backlash at the Kohelet Forum and a lot of critique. I have done episodes on this. We have. I've written endlessly about this. I share the rights critique of the court. I share some significant portion of the left's critique of the right in handling judicial reform. So we're going to dive into all of it. Before we get into it, I want to tell you that we have a sponsor today. This episode is sponsored by Iris Engelson and dedicated to the memory of her friend, Sharon Kass, who passed away two years ago at the age of 57 on the 29th of Kislev, December 19th. According to her friends, Sharon was fiercely independent, unpretentious and unflappable, brilliant and deeply curious. At once confident and modest, wickedly funny, and absolutely devoted to her family, to her friends and colleagues, to the many young people she mentored, to the Jewish people and to the Jewish state. A cause particularly dear to Sharon's heart was the International Birding and Research center in Eilat where she had volunteered. The bird sanctuary there is open to the public every day of the year with free admission. May her memory be a blessing. Thank you so much, Iris, for that dedication. It is beautiful to be remembered that way. We all hope our friends remember us that way. I want to invite everybody also to join us on the Patreon. If you like what we do here, that's a great way to keep the lights on. Also, you ask the questions that help direct us to the topics that we cover on this podcast. You get to join once a month, a live stream in which I answer your questions live. It's supposed to go for an hour. It ends up going two and a half hours every time. And we'd love to see you there. You can join us@patreon.com AskLav Anything. Okay, let's get into it. Moshe, how are you?
- [02:10]
B
Delighted to be here with you.
- [02:13]
A
I don't know how to start this conversation because first of all, I have to say to people, we're friends and I have in the past, in making a business decision, consulted with you. You are someone extremely personable who I also personally trust. But I'm going to open with my sense of what happened and what I think happened was that as soon as the rubber hit the road in the political system, a lot of things went haywire. I did not expect the response of the center left, the hundreds of thousands who marched, one in five Israelis, probably over the course of the different marches. And judicial reform, I did not expect the almost inability of the right wing political class to deal seriously with questions of checks and balances, with questions of half the population thinking that this was an attack on democracy. I did not expect it to be handled so unseriously and to set the country on fire. And so I don't think you expected it either. Having said that, the judicial reform, you wrote an article in Hashiloah where you said it began, you know, when it began, I think at the end of December of 2022, shortly after the government was sworn in. That was when Yariv Levine, the Justice Minister, officially announced it. And it basically ended on October 7th. Right. Because the country's agenda had shifted, except it didn't really end on October 7th. The fights with the Attorney general, the attempts to pass little piecemeal parts of it in legislation, are still ongoing, and it's still a defining, almost part of right wing identity. So where do you think judicial reform stands? What do you make of it at this stage?
- [03:55]
B
Okay. All right. So I would have framed it differently than you, honestly. Okay. You made it seem as if the right somehow irresponsibly set the country on fire, and the center, or center left has no agency. And, you know, we're not even talking about whether their response was reasonable or not reasonable. We're only going to talk about whether the right rolled it out correctly, et cetera. So I will try to get you back to say, a more balanced frame as we go. But before we do, I think we need to set the stage. Okay. The left tried to portray judicial reform as an attempt to push a particular vision of the state. They suggested that the purpose of judicial reform was to push the state in the direction of something less democratic and more theocratic, as they sometimes said. Right. And I think it's important, before we begin, to talk about what my personal vision is for this state and what I think is a widely held understanding of where we're trying to go as a society, as a country. So my view is what I'd call the pragmatic vision for Israel. Okay. It's not super ideological, unlike maybe some students of Rav Kuk. I don't see the state in messianic terms. I hope that one day it turns out to be, but certainly as a practical matter, don't see it that way. I certainly disagree with the view that sees the state as somehow antithetical to Jewish interests. Obviously, I have a very pragmatic view, which is this. I think that the state is a place where Jews can feel, or we aspire for the state to be a place that Jews can feel at home in a way they never could in the Diaspora. Whether in the Diaspora where they were persecuted or in the Diaspora where they were faced with the threat of assimilation. Israel is a place where we don't feel either threatened persecution by the government or by our neighbors, maybe by neighboring countries, but that's something else. Or the threat of assimilation. It's a place we can kick our shoes off and try to develop our own civilization comfortably, okay? Without the kind of neurosis that develops when you're under conditions of persecution or assimilation that you don't want. That requires that we be free as a society. Because the only way we're going to develop our civilization as Jews is by trying different things and seeing what sticks, okay? Which means that every community and every individual needs to have complete freedom to try what they want. I am, to put it simply, I tend towards libertarianism. Call me a classical liberal, if you will. That's the direction I go in. So the first thing we need to establish is that if I was a big advocate of judicial reform, and I was, and I am, it is not because I'm trying to take the state down the path of theocracy or anything like that. That's the first thing. The second thing is, well, how should we think about structural questions like judicial reform? And the answer to that is we need to do it from behind the veil of ignorance. Okay? I'm borrowing the term from John Rawls. The point being that today the Right controls the Knesset and the Left. I'm speaking in very broad generalities here, but go with me. The court is controlled by the left. Various institutions in the bureaucracy are controlled by the left, et cetera. I don't think any of that should be relevant. When we talk about structural reforms, when we talk about structural reforms, we should be thinking 50 years and 100 years down the road when we don't actually know who will control which institutions, in which case we can try to separate ourselves from the politics of tomorrow morning, okay? You control that. We're going to weaken that institution because you control it. We need to get past that. We need to think, really, what could possibly work? What are the checks and balances that actually make the most sense for the country. Okay? And finally, your point about this being badly handled by politicians. I think it's important to say that for reasons well understood in public choice theory, politicians are always going to be less than perfect. Okay, I'm speaking with understatement here.
- [09:00]
A
Politicians walk us through that. I don't think the average person knows public choice theory, and if I do, it's because of a college course. I've forgotten.
- [09:08]
B
Okay? So first of all, there's a principal agent problem, which simply means that whoever is representing you or us in the government or in the Knesset or in any public institution has their own personal and institutional interests, okay? So while they are representing us, they're not going to represent us perfectly because they have other considerations to take into account, okay? And those will always affect their judgment on such matters, okay? And it doesn't matter whether they're on the left or they're on the right. They're human beings, okay? And human beings all have interests and they all belong to groups that have interests, and those will always be reflected in their decisions, okay? So I don't think that it's meaningful to say, oh, this is a really bad government. You will discover that the next government is going to be approximately as bad, okay? They're not all exactly the same, but it will be approximately as bad and for roughly the same reasons, okay? There are all kinds of things, you know, things like, like concentrated benefits and dispersed costs, okay? There's always going to be some small special interest group that really, really, really cares about the price of dairy products, okay? Dairy farmers, right? Then there's going to be lots and lots of people who care a little bit about that because they'd rather be paying a few cents less than a few cents more in the supermarket, okay? But it's not the issue that they're going to vote on, okay? So when a politician thinks about the policy regarding dairy products, okay, they are going to think more about that small group of people that really care about that issue and are going to vote on that issue and than they do about all the other people who slightly care about it but are going to vote on the basis of different things, okay? This is classical public choice theory. It's why all governments are bad, okay? So we do need to understand this before we dive in to these kind of questions so that we don't get trapped in the. Oh, this all happened because these particular politicians were particularly bad. I think that's a trap, okay?
- [11:30]
A
So I want to dive into the politics, but before I get into that. I actually think this government and these politicians are genuinely among the worst we've ever had. And I have followed.
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B
I want to keep you off that path.
- [11:46]
A
I know, I know, but I want to get there. Did the right set the country on fire or did the left is a great question, because we know that the activists left set the country on fire. They built out the institutions, they called the protests. But it was the actions of the right and it was the silence of the right. I remember when Yariv Levine presented all the different pieces and I remember sitting down with literally a piece of paper probably a dozen times I did this and I said, wait, if the government can just appoint judges, willy nilly, if the government can override judicial rulings of the High Court of Justice, at least of that part of the court, or of that version of the court, that instance of the court with a simple majority, which almost every coalition will have on many of the issues that define a coalition, which are the big dividing right, left issues, if a government can, and you go one thing after another about how the thing restructured itself and it turned out that we simply wouldn't have a High Court of Justice. And then I went over to the executive and legislative and I discovered that we have one of the weakest divides between legislative and executive in the free world, where a parliamentary system. So we're not going to have, you know, two houses of, you know, two houses of Congress and then a president. But. But even for a parliament, the fact that we don't have direct election of an MP, most MPs are put on their list by a party leader. That's, by the way, absolutely as true of the left as the right. It's not like Yair Lapid or, you know, Yisrael Beitenu, it works any differently. But it is manifestly true in the ultra orthodox parties. It is de facto true in Likud. Likud is the best of the big parties in terms of having a primary. And even there, it's fundamentally the Prime Minister's decision, what the list looks like. And you therefore basically have a situation in which the executive in Israel appoints the parliamentary majority and we're weakening the court and we don't have any checks and balances in the other side of the system. And Yariv Levine was, you know, people like you, people like me, we were making the argument, look, it's a maximalist argument. He's making a maximalist first bid. And then Yeriv Levine got up on television and said, it's not a Maximalist first bid. Every piece of this has to pass and just thing after thing after thing. And during this period, Shas decided to pass a bill in which at the Kotel, if a woman is not dressed modestly, according to Shas version of modesty, that becomes a felony. And then just how many of these bills, 25 of these bills that I reported on at that period of illiberal. Bills that were not meant to pass? No, not things that passed, things that were proposed, and I do think it was a couple dozen. And they made the case. So you had this activist core on the left that wanted a protest. These people haven't been able to get any Israelis out to protest for 20 years, ever since the second intifada shattered them and shattered their political abilities. But they did on this. And I think the right kept making that case. We have a generation of politicians that doesn't understand the things that you said, the veil of ignorance. Right. We want to build institutions for the possibility that the other side is going to be in power. Right. Where are those other checks? You weak in the court. Fine. But we have so few checks in the system. Why wasn't that part of the debate? Why when people screamed about it, was it never did it never become part of the debate? I submit to you that if I allowed. And again, the Kohelet farm includes people who are very much part of my social circle, I promise you, dear viewer or listeners, that if the Kohelet farm internally were to write an Israeli constitution from scratch, there would be very significant checks and balances. I know people don't know that necessarily, or think that about, but I promise you that is correct. But there were no checks and balances in this judicial reform. And that's the politicians. And that's my question to you. What if the people who don't have the right interests, who refuse to see 50 years down the road, who refuse to erase their own specific question of their own power from the equation. What if they're the ones who are tasked with making this massive constitutional change that would fundamentally change how powerful they are? And it really was that dangerous.
- [15:58]
B
Okay, so I disagree with you on quite a number of things you said there. The list was so long, I've already forgotten. But I'm going to start somewhere, okay. And then hopefully meander my way through all the things that I disagreed with.
- [16:12]
A
That's what I just did. So it's a great way to do this.
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B
Okay, so first of all, what was the problem that we were trying to solve? Okay. I mean, the point is that we thought that there were no checks and balances on the court.
- [16:26]
A
Right now we all agree, and there were none. And I've written about the Derek Pinchasi decision, the massive expansion of court power, and I think we've done an episode on that. The Israeli Supreme Court is ridiculous and unhealthy. I just wanted to say.
- [16:39]
B
Yes, well, thanks for adding that little footnote to your very long speech about how there were potentially not going to be checks and balances on the other branches of government. Now, you did finally add that, in fact, there are already no checks and balances on the court. And this is what we were trying to redress. Okay. Without eliminating checks and balances on the other branches. Okay. Now, I'm not suggesting that this was perfect and there was nothing to negotiate. On the contrary, I think there was something to negotiate. And by the way, Yariva Levine was open to compromise. Part of negotiating is saying, I'm not going to compromise. Okay. That was, that was all part of the talk about the negotiation. That was part of the negotiation. Khabib, you knew that. Okay, but, but anyway.
- [17:23]
A
No, I didn't know that. And in fact, let me double down that in 10 seconds. When you have a very simple negotiation over a very simple issue. For example, you have a car. I would like to buy your car. We're debating the price of the car. Very simple negotiation. We don't need a lot of trust. I can hand you the cash while you hand me the car. But when you have a very complex negotiation over many, many different things, you're going to do something for me. Three days later I do something for you. Fourteen days later you do something for me, and eleven years later I do something for you. Something like that. Something like writing a constitution, which you'll have to take stages and legislate. When you have a multi, across time, across institutions, a vast, complex negotiation. If you start out with a maximalist position in a simple negotiation, you're going to get more money. If you start out with give me a million dollars for this car, I'm going to say a million. You're crazy. I'm not going over 100,000. Now, if you'd started with 200,000, I would have started at 50. You're going to get more money for going crazy. In a complex negotiation, we need trust. I have to know that stage three is going to happen for stage one to be worth it. And so starting out in a radical, maximalist position in that kind of a negotiation is catastrophic to trust and catastrophic to the negotiation. I Think Yariv Levine. In the end, I don't know what he thought he was doing. I really don't, because he handled it so badly in terms of pr, by the way, the entire party was screaming and yelling and angry and bitter. And the discourse was there was no reaching out. There really wasn't. When you start with an extreme position in a complex negotiation, you shatter the trust you need for the stages to move forward. And I think that's part of what happened here. So, you know, even if he wanted this to be a negotiation, that was not the way to do it. He was handling this like it was. Like it was negotiated, some tiny little element of it, of the arrangements bill or something. And he was talking about our fundamental constitutional order. Okay?
- [19:15]
B
So the first thing I'm going to do is agree with that point, okay? I completely agree with you that in a complex negotiation of this sort, taking a maximalist position is unwise. Okay? That is not what I would have done, but I'm going to do better than that. I'm going to tell you exactly what in the opening position was wrong and needed to be fixed. Okay? I'm going to dive right into the details of it. But do remind me to tell you how wrong you are about who was unwilling to negotiate and compromise, because that's a very important point for the record, okay? It's not theoretic, you know, very important theoretic point, right? But for the historians one day who are going to write the tale, it is very important to set the record straight on this. And. And I was personally involved, so I'm going to tell you exactly what I saw. Okay? But let's dive in first. What is the problem that we were trying to solve? And the problem was essentially threefold, although it breaks into many more details. The first is the judicial appointments process in Israel, okay? Judges are appointed by a committee of nine people. Three of them are sitting Supreme Court justices. Two of them are members of the Bar association, the other four are politicians, two ministers, including the Justice Minister, and two members of the Knesset, one of whom is, by tradition, but not law, from the opposition. Okay? Now if. If you think about it, you understand that it is almost impossible to get a.
- [20:46]
A
And you need seven votes to appoint a Supreme Court justice.
- [20:49]
B
So there's in fact a veto. There's a veto of the sitting judges. And in fact, the members of the Bar association, for various reasons we needn't get into, generally will take the side of the judges so that the judges really do control who. Who's going to Sit on the court. Now that the problem with that, okay? I mean, some people say, wow, that makes perfect sense. They're professionals. They understand, right? They're. They're neutral. All they care about is professionalism. Now, I think you heard the cynicism in my, in my voice as I said that sentence, okay? Nobody is neutral, and nobody only cares about professional considerations. Everybody has personal political views. They have institutional interests, and the judges are. You know, let's put it this way. If having judges decide who joins the bench ensures that the court is going to remain homogeneous and not reflect the makeup of the Israeli population, period. If the judges, for some odd historical reason, all believed that the moon was made of green cheese, they would prefer judges who believe that the moon was made of green cheese, and we'd have such judges for a century. Okay?
- [22:04]
A
And just to. Just to strengthen your point, to my knowledge, the three justices on the committee never split their vote, ever. Functionally, they voted in dozens of votes, Supreme Court justices and hundreds of votes. Also lower down, they voted as an.
- [22:18]
B
Institution, which, by the way, is illegal. They are not allowed to collude. It actually, it actually says that they're not allowed in the law that they can't collude, but they do. Okay? So in any event, that's problem number one. Problem number two is what. What authority does the court have? Now, in other countries, there are limits on standing, which simply means who can bring a case to the court. Right. You can only bring a case to the court if you personally have been affected. Right. You can't come to the court and say, I'm offended at the thought that there's a law that's going to affect somebody else. Right? You can't. You can't do that. Okay? In Israel, there are no limits on standing whatsoever. Anybody can come to court and say, yeah, I don't like that. I'm just not happy about it. It happens every day. This isn't like every once in a while it happens. This happens every day. All of the controversial cases that we're talking about are brought by people who in any other court would have no standing. Secondly, there are limits.
- [23:15]
A
Several thousand a year, just so people understand.
- [23:17]
B
Yeah, okay. Now the next thing is just disability. There are just. There are certain kinds of cases that courts in other countries will simply not hear. Okay? So in the United States, right? There's the political question doctrine. If it's a political question that is within the authority of the other branches of government, the court will say, we're not getting involved in that. That is within the authority of the other branches of government. Okay? Israel has no limitations on justiciability. The court will get involved in. In peace negotiations, in war tactics, and you name it. The court will get involved in absolutely everything. Okay? Foreign policy. The court will tell you what kind of treaties you can make with other countries. All right? Everything. So, and finally, what are the grounds. What are the grounds that the court can use to get involved in either administrative decisions by the government or by government agencies or by the Parliament, by the Knesset, Okay? Now, other countries do have this notion of if something is completely unreasonable, that is to say, in the United States, it's called arbitrary and capricious, right? The kind of thing that. No, no, no rational person could possibly have said that. Right? Then the court will get involved. Okay? It's very rare that happens. It's exceedingly rare In England, it's called Winsbury unreasonableness. It has to be something. Again, the definition is literally in other countries that no rational person could have made that decision. The standard in Israel is the judges disagree with it. I'm not exaggerating. Okay? That is the standard. Barak put it much more elegantly in the Yellow Pages decision back in 1980. He said, if we feel that the government or a government agency has not weighed each possible consideration exactly right, then we can tell them that their decision is null and void. Okay? Now you understand that that is just an elegant way of saying we disagree. And finally, in the United States, for example, you can strike down a regular statute if it's somehow in violation of the constitution. Israel does not have a constitution. So instead, Barak declared back in the Bank Ham Israhi decision back in the 90s, that we're going to use Israel's basic laws as if they were a constitution, and we're going to strike down regular statutes if they conflict with any of Israel's basic laws. And then Barak proceeded to interpret these basic laws in an extremely general way and started striking down statutes. Okay, you know what? So far, so good. I actually, I can see the logic there. It was controversial at the time. I see the logic. But then in 2018, the court decided they can also strike down basic laws. Okay? So having decided that the basic laws were our constitution, they are now going about striking down sections of our constitution. Now, how could you do that? There is nothing above the constitution, right? So the court decided. Depends which judge and exactly how they choose to express themselves that there are. Right. You know, it's like, like basic principles of our system which are not written anywhere, but the judges kind of know Them because the judges are professionals. Right? Now, this is the problem that we were dealing with, Khabiv. Okay? There really. There literally are no zero, not few, zero checks on the court. They can get involved in any case. They can decide whatever they want in any case, okay? So there are literally no limitations on them. This really does need to be addressed. Now, I understand that you don't want to address it in a way that takes away all the court's authority, right? So you would like to say, okay, guys, we would like the standard for reasonableness to be much for unreasonable is to be much higher, arbitrary and capricious or something like that. Right? But the problem with that is that the court can always say, yeah, that's arbitrary and capricious. Right? There's no, that's. That's a very watery idea. It's not the kind of. Right. It's, it's com. It is completely up to them. This is, it's. It's not something you can define, right? What, what makes something very crazy instead of just slightly wrong. Right. So there's a problem in fixing this, which is why there was maybe a tendency to go overboard. Right. Some people said, well, the only way. What are we going to do? The only thing we can do is to have an override. Because otherwise we literally. They will always be able to say that something was totally egregious. Right?
- [28:15]
A
Okay, so here's my problem with, here's my problem with the override, with the picture you're painting. Every single fact I agree with, I want to add to it, grievances of my own. The court's insane. I have interviewed over the years, left wing professors before this became in the last, I don't know what, 15 years a major or 10 years a major political divide. Left wing law professors were very worried about this. Ruth Gavison famously was very worried about this great law professor and law scholar who, by the way, Ron Barak, torpedoed her appointment to the Supreme Court because she disagreed with him on this activism. Truly an outlier in the democratic world. And I interviewed Amnon Rubenstein, no less than maybe the, you know, the author of the Basic Law, human dignity and freedom. The author of the Basic Law, freedom of vocation, merits, Minister of Education, Dean of the Tel Aviv University Law School, not as suspected of being a member of the Kohelet Forum. And he told me that this, you know, the Supreme Court was insanely overpowerful, that the Attorney General, drawing powers given to the Attorney General by Supreme Court decisions, not law, had become an institution that the Attorney General and the Supreme Court themselves would not allow to exist anywhere else in the bureaucracy because they decided on their own powers. Because the Attorney General of Israel both indicts ministers of the cabinet and also defends them, or is the boss of the defender of the ministers of the cabinet. All kinds of things that he complained about. I agree with every word and I think you were even polite. And also the Knesset has refused to pass a constitution. That's not a minor point, that's not a small thing. You and I do not have anywhere in law. Freedom of expression. You and I do not have anywhere in law. Freedom of religion. You and I do not have anywhere in law. Freedom of the press. Freedom of the press was something instituted in this country by a judge. The Agranath decision, the Kolaam decision in 1953, when a minister tried to shut down a newspaper, by the way, a Stalinist newspaper telling a vast lie that was hurting Israel about Ben Gurion allegedly sending troops fight the Korean War, that was telling lies at the service of Soviet propaganda in Israel. And the Minister of the Interior used a British Mandatory law that nobody noticed so had never been repealed to close the newspaper. And the judge said what a democracy is. Granad says in a decision is when the people is when the leader is the agent of the people rather than the other way around. And therefore you can't stop the people from talking to each other even if they're saying wrong things. The government never tried to shut down a newspaper after that decision, but they also never repealed the law. In fact, in 2017, a member of Knesset who happened to be just a political nerd, a former political science professor, noticed that the British press order was still on the books and it was only overturned in 2017. And only a quarter of the of the Knesset was in the room voting. They didn't even. It was. Everybody was in the cafeteria. It was nothing. We have these rights to expression, to freedom of religion, to free association. We have all these rights. They're written nowhere. They're protected by no one except this court. And it's worse than that. And what's worse than that, and I think what drove the decision to overturn a basic Law, which I agree with you, is contradicts the entire logic of ruling by basic laws of Aharon Barak. I think it was the wait Benish led that decision was the fact that this, that the government and the Knesset had changed basic laws something like 25 times in five years. They treated basic laws because it's not hard to change basic laws. They're not protected in any way. You don't need a super majority, you don't need to pass it in two.
- [31:55]
B
Houses of Parliament, which is why each one has within the law itself the rules for changing it.
- [31:59]
A
Right, but the relevant ones, the laws of the entire parity government system set up in 2000 to convince Gantz that Bibi wasn't lying about a rotation agreement, which of course Bibi was then lying about. But, but they, they enacted four or five, I don't remember, amendments to our constitutional order, creating new kinds of cabinets, new kinds of executive branches with new rules. And they just did it willy nilly. They just did it for, for, for, you know, shits and giggles, so to speak. They treated basic laws like, like just wet paper. And then the Court said, well, basic laws can't be the thing we're all bound by, because they don't think it's the thing we're all bound by, which a Supreme Court is absolutely forbidden from doing. Absolutely forbidden from doing. But the point is nobody, nobody thinks we have a serious constitutional order. Nobody anywhere. And the Court is the least democratic of the institutions of a democracy. So they shouldn't be playing fast and loose, but everyone is playing fast and loose. And what I saw in judicial reform was people saying publicly and loudly to each other. The discourse within Likud was unbelievable among Likud activists. Maybe democracy isn't such a good thing. If the left keeps winning or has any chance of winning, maybe none of this stuff actually needs to, you know, we have to kick the leftists out of every institution. They're going to destroy the country. That was the kind of discourse you had in the activist right at this time. It was not a serious debate and it was not by people trying to build a serious constitutional system. Yes, the Court was a disaster. The Knesset is the ultimate power. Use that Knesset to build new checks on your power while weakening this ridiculous, unhealthy court. Why wasn't that the process? And I'll say one last point. Bibi said this, Bibi said this during the, I think it was in February, in 2023. He would already kill it in March because of the mass work stoppages of these Taghut and other things. But in February he said, look, we're going to pass for the first time in Israel's history a Bill of Rights. And what we're going to do with that Bill of Rights is make sure that all your rights are articulated. You will know what your rights are. And because it's written down in a bill of rights. The Court will still be able to protect you. Right of assembly, right of speech, etceter, even if its powers to neutralize the executive branch are gone. Bibi said that, and then Bibi did nothing about it. Nobody in Likud did anything about it. Nobody said about writing one. So why wasn't it a bigger, better process? Everything about the Court is true. Our democratic institutions are basically slapdash, haphazard things. Nobody has a good theory why we're a democracy. We have none of the institutions. We've been under this massive military emergency for 77 years, and yet we're a functioning democracy. It's kind of an amazing mystery that nobody's even serious enough to actually tackle and ask why. But this is a moment where if it's breaking down, we have to build the real thing. And I don't see the responsible kind of leadership that's willing to do that.
- [34:56]
B
Okay, first, this is not about me. However, I must say I have personally written two complete constitutions, okay? One, one with a group of. Of friends and serious people called the Institute for Zionist Strategy, which we wrote way back in the day. And then subsequently I sat down with Mickey Eitan, who was the chairman of the Knesset Constitution Committee, who was the first person who tried seriously to write a constitution for the State of Israel. Mickey passed away about a year ago. He was a very special person. Mickey and I spent years together writing a complete constitution, okay, which exists. It's even posted on the Internet, okay? The Eitan Koppel constitution, okay? You can look it up. So I plead innocent on the charge of not taking a constitution seriously enough. I've written to. Very few people can say that, but.
- [35:59]
A
I view you as part of the solution. I mean that you have never said anything about the judiciary without all of the defense and arguments and all the things that you actually wanted, which. Right. I have not heard any of these debates in Likud. I have not heard any of these debates in the political class. And if you want to say this political class is as bad as any political class, maybe they shouldn't be writing a constitution. It takes a very special generation to write a constitution. I don't know if this American political class could write a constitution.
- [36:25]
B
Yeah. I'll tell you, the problem is that when you write a constitution as the. As. As the country is beginning, as they did in the United States, then you are behind the veil of ignorance, okay? The problem is now everybody knows what institutions they control and what institutions they don't control. And it's very hard for politicians in that state to put themselves behind the veil of ignorance in order to do what needs to be done. It's hard. It's hard for people on the right. It's hard for people on the left. So we talked about how judges are appointed and we talked about how they have extended their own authority. Okay, there's one more point, and you mentioned it in passing. Right. You said that Amnon Rubinstein said that there is no position in the world that has as much power as the Israeli Attorney General. Okay? That is an extremely important point. Okay. The court has decided, to be precise, Aaron Barak, in a single decision, decided that the Attorney General, a. When the Attorney General represents the government before the court, the Attorney General's duty is not to defend the government, but rather to defend cosmic truth. Okay? And, and, and, and absolute justice, not to act as the government's lawyer. So the government now frequently goes into court with no defense, with its own lawyer, in fact, appearing in court going, don't listen to my client. My client has no clue. Listen to me. Okay? That's number one. And Barack said that's what they should be doing. Not that it's okay if occasionally they do that, but that is actually the definition of their job. Okay? The other thing that Barack said in the same decision, in the same decision.
- [38:22]
A
The Derry Pinchasi decision In, I believe.
- [38:24]
B
1990, it was only Pinchasi. Yes. Right. Amitai. Amitai was the person, was the organization that should not have had standing that actually brought the suit to the Supreme Court. And it was about this minister named Pinchasi, who was under investigation, had not been indicted. But the Attorney General thought that Yitzhak Rabin, the Prime Minister, had a duty to fire him, even though he had not even been indicted by. There was no such law in Israel. Okay? The law is that if you have been convicted and have exhausted your appeals, then you need to be fired. Okay? Not that if somebody is investigating you. Right. And by the way, who's investigating them? The very same Attorney General who is calling for them to be fired as the government's lawyer. Right. Okay. So in.
- [39:16]
A
In any case, it's embarrassing.
- [39:18]
B
Yes, it is embarrassing. The other thing, a country full of.
- [39:21]
A
Lawyers to have such a bad system. Yes.
- [39:23]
B
The other thing that Barak said in that decision is, by the way, when the Attorney General told you to fire Pinchasi to the Prime Minister, it was your duty to do that. Because whatever the Attorney General says is the law by definition. Okay? It's constitutive. Now you're talking about a bureaucrat here. So what has happened is that the Attorney General, Amra Rubenstein, said that the attorney General is the most powerful person in the world for a reason. Okay? The Attorney General literally can tell the government or any government minister or any government agency. This is the law. You must do this. As far as the court is concerned, that is binding on the government. Now, I want to drill down on one point, which is the essential point, okay? And it will foreshadow the whole social issue that's really behind the battle over judicial reform. Okay? When does the court and the Attorney General take advantage of all this excess authority? Okay, where do we see it most saliently? All right, you see it in a million places, but there's one place where you see it way more saliently than anywhere else, which is when the government makes appointments. Okay? What happens then is, okay, there's lots of rules. You can't be the commissioner of the police unless you satisfy requirements 1, 2, and 3, right? Now, when a candidate comes who does not satisfy any of those requirements, the court does not need to say, oh, that was unreasonable, right? The court doesn't need to say that because they could say, wait a minute. No, the police commissioner has to have been in the police for at least 10 years, right? So this. This person has only been there for five years. So they will not say it's unreasonable. They'll say, wait, there's. There's a certain requirement here. It's not, therefore, the appointment is illegal because this guy doesn't satisfy the requirements? Fine. Okay, well, what happens when the person satisfies all the requirements, but the court just doesn't happen to like that candidate, okay? Because that person, you know, comes from the wrong side of the railroad tracks. As far as the court is concerned, what the court then does is they say, well, we think it would be unreasonable for you to appoint that person. Okay, now let's. That's not where it stops, because the court has already said that when the attorney general tells the government that something is illegal, it's illegal, right? Regardless of what the law says, the Attorney General has said it. Now, the court has also said that something that is unreasonable by the lowest possible standard, right, is illegal. So now put those two things together, which is exactly what happened, and the Attorney General now can come and say to the government, you can't make that appointment because I think it's unreasonable. Now, that seems like you shouldn't be able to put those things together, but you can, and it happens all the time. So just to give you an idea of how wacky this can Be. Okay, the following people have been disqualified from serving a job for which they hold all the qualifications because the Attorney General has said that that would be unreasonable. Okay, so the general chief of Staff of the army, that was Yoav Galland, right? Twice. The chief of police, the head of the Israel Lands Authority, the head of the prison authority, various director generals of ministries. It's all about appointments. It's all about who is going to have the power. That's why reasonableness, or the unreasonableness clause is so important. It is the way the court and its long arm, the Attorney General, are able to disqualify qualified people whom they don't like for various reasons. Okay? That's the game. Okay, now we can talk about. Right, the reform. What the reform did was slightly change the Judicial Appointments Committee, okay? The truth is there was not one single proposal on the table. There were dozens of proposals on the table, some of them, some of which would have given the government more power, and some of them would have required the opposition to also give it some support in order to pass. There were various proposals on the table, okay? Some better, some worse, almost all of which were better than the current situation. But no matter. The other thing was that the Attorney General could not boss the government around, okay? The Attorney General's advice was only advice. It wasn't binding. The government could take a different lawyer, if it so choose, to represent it in court. That was the Attorney General. And then the government could not. The. The court could not use unreasonableness as the sole criterion for ruling that a government decision was invalid, okay? They would actually have to find some reason in law of which there is a long list. Okay? That was. That was the next thing. Finally, the government could not strike down a Basic law. Excuse me. The court could not strike down a Basic Law. And if they wanted to strike down an ordinary law, they would have to do it with 2/3 of the full panel. You know, Israel, you know, there's 15 judges, but you could have a panel of three. In the United States, there are nine, but all nine sit on every case. In Israel, you could have just three sitting on a case. And they need to have 2/3 of the full panel in order to strike down a law. And here's the thing that will make you jump. If the court were to strike down a law, the Knesset could say, well, notwithstanding that, we are restoring the law, okay?
- [45:31]
A
Now, by a simple majority.
- [45:33]
B
By a simple majority, or 61 out.
- [45:35]
A
Of 120, not a simple majority of the room, but of the total.
- [45:38]
B
Yes, majority of the Knesset, A majority of the Knessess. Okay, what was wrong with this, with this proposal, okay? Now, it is perfectly legitimate for people to come, you know, to say we're opposed to it because we don't want you in any way limiting the court's authority. We like the court. They're my kind of people. We want. Okay, you can say that. That is a. You know, I don't. I don't. I wouldn't say. I don't think anybody would say that from behind the veil of ignorance. But. Okay, you could say you went too far. All right? And I'll tell you exactly where this went too far, okay? You went too far. You could say, I don't like the way you rolled it out. Yariv Levine sounded kind of nasty. Okay? I would. I would rather Yeriv Levine sound softer and gentler. Okay? There's. There's all kinds of. You could say, you know what? It's a good idea. You're completely right, but I'm not up for a fight now. I don't think we need a fight. We can't afford a fight. So even if you're completely right, but I'm afraid it's going to cause a lot of divisiveness, and therefore you shouldn't do it. All of these things, I get them all, okay?
- [46:44]
A
But you say these things like they're small, minor inconveniences, everything circled around intent. What do these people want? No, for anyone who's not deeply involved in the actual discourse, which is a very small number of people. For the ordinary Israeli public, it was a question of intent. It was a question of personal trust. And so those who supported the reform, by and large, voted Bibi or his coalition. How Yariv Levine talks when he wants to weaken the court is huge. It's. Without the Federalist Papers, what would the Constitution have been about? And there wasn't reason to.
- [47:20]
B
I disagree with you both on the substance and about the intent, okay? And about what happened. Okay? So let me just tell you, okay? The two main problems with the reform were, one, the override. There should not have been an override, okay? Not at any number. I don't think 80 should have been able to override either. You know what happens if you say, okay, you can override with 80? What happens is that the court says, wow, he gave me, you know, like, there's another set of brakes in the back seat that nobody's ever going to use. But no matter. We just got a license to do whatever we want because we can always challenge you. By saying, well, you know, you can override if you don't like it, right? So this would have actually encouraged the Court to be more activist. And then we would have gotten into a cycle of the Knesset and the Court battling each other. That would not have been good for anybody, okay? I think there should have been no override. Not at 61 and not at any other number, okay? And I said so. But now I can tell you as a fact, not as hearsay or speculation. Nobody, nobody, not Yariv, not Simcha, not anybody. Simcha Ratma be the head of the Constitution Committee, who is very Violinist. None of these people had any thought for a moment that the override was actually going to pass, okay? Now I'll tell you something else that exactly addresses the point you brought up before. Oh, by the way, there was one other thing that was wrong with the law, which is that Barak had turned these Basic Laws into our Constitution. He should not have done that. Because, as you said, there's nothing special about them except that they're called Basic Laws, right? Since the.
- [49:06]
A
They're mostly. People should just know they're mostly structural laws. There's a Basic Law, the judiciary, that describes the structure, also the powers, but mostly the structure, Basic Law, the Knesset Basic Law, the government, things like that.
- [49:18]
B
Now, as you already said, it's incoherent for the Court to strike down a Basic Law, because there's not. They can't hang themselves on anything. There's nothing above a Basic Law. But I completely agree that if something's going to be a Basic Law, well, there should be something special about it beyond it simply having a label slapped on it that says Basic Law, right? So that either you pass it with a special majority or you have to have two consecutive Knessets that pass it, right? But you need to have a. For both amending and passing, you need to have a special procedure. And having done that special procedure, the Court can not strike it down at all, right? So those were mistakes. They should have been done in advance. The definition of a Basic Law should have been defined. There should not have been an override, okay? Now, as I said, nobody had any. First of all, nobody opposed the idea that Basic Law should be well defined and the procedure should be harder. And also, nobody thought that the override was going to pass. Here's what happened. The day after Yariv Levine made the announcement, I called up people on the other side, right, who were opposed to reform, legal legals and those types. I said, guys, let's get together and negotiate the details of these laws, right? So that it will make sense for everybody, okay? These are. I'm talking about, you know, some of the people that we were negotiating with were people who, you know, give speeches at Kaplan, at the. At the protests on Saturday night, right? Gung ho, anti reform. So we were sitting, having serious negotiations, right? In parallel with this. In parallel with this, I was speaking to Yariv Levine at the Simchan and others, and they said, could you please. Literally, Yariv pleaded with me. He said, I am trying to get Benny Gantz to sit in the room with me so that I can give him whatever he wants, okay? We could not get these guys to. In the room I spoke. I spoke to all the heads of the opposition, okay? In order to get to. I was so desperate to just get a negotiation going. I went to friends of theirs, okay? Somebody said, oh, this. This particular guy is the guy that Benny Gantz trusts. I called him, I spoke to him. I brought him to Yairville Levine's office. Okay? I won't mention his name. But Yariv and I and this best friend of Benny Gantz sat in the office. I was there at the conversation. Yariv Levine said to him, please tell Benny that all he needs to do is walk into my office and have a negotiation. And I promise you there is no demand that he will make regarding a compromise on the reform that I will not accept. Okay? I'm happy to compromise. To this day, Benny Gantz has not walked into his office. Okay? That is what really happened. Okay? What also really happened is that our negotiations, by our. I mean, Kohelet, people who wrote all the papers, right. On which the reform were based. We sat. We sat with people who were very much opposed to reform. We went through every single line and we said, okay, let's work it out. And we reached a compromise. Okay? We reached a compromise. We brought the compromise to the President. The only thing that we agree, we weren't going to announce the compromise because we wanted it to get political support. We thought the best way to do it was to bring it to Herzogen who had somehow pushed himself into the whole thing. Herzog and Herzog's people said this is the best compromise we have seen. We've spoken to so many different people. It's unbelievable. It was literally. It was Kohelet and people real couple. And it's okay. We had. We had a whole deal there. The one thing we didn't agree on was the Judicial Appointments Committee, where again, we were dancing around the solution, but neither side was able to agreed to that particular solution for political reasons. But on all the other issues, there was complete agreement. We brought it to the President and the president killed it. I hate to say this, I don't want to blame anybody here. He literally gave it to people on the other side, said, here, take this and put your comments in. And their comments were, okay, get rid of this, get rid of this, get rid of this. Until there was nothing left of the reform whatsoever. Okay? His so called compromise was simply killing the reform. It was dead on arrival.
- [53:51]
A
Why didn't Yariv do this? Why did he send you to do this? Why did he have emissaries? Why did Likud get defensive? And not.
- [53:59]
B
Because nobody would speak to him. Because nobody would speak to him. As I said to you, Yariv wanted to speak to his counterparts in the opposition. Okay? Yariv isn't going to speak to a lawyer who makes speeches on Kaplan.
- [54:11]
A
Okay? But it's not his constitution.
- [54:14]
B
He needs to speak to the head of the opposition who did not even want to walk into it.
- [54:19]
A
Yes, because of his. Because of the politics, because of how it was presented. Because then he can't be seen to be bending a knee to a thing that was presented as a declaration of war. You, I once heard call it and said, say, critique it as it was presented. As if you didn't say it was a declaration of war. You said it was presented like a declaration of war. It was bad optics. Well, bad optics. When the fundamental question is trust is not a small thing. Why didn't Yariv Levine get up in front of the nation? Why didn't our great communicator prime minister who I. Over the past two years, he wasn't allowed to.
- [54:51]
B
The prime minister was not allowed to talk about judicial reform because the attorney general told him that is true conflict of interest.
- [54:56]
A
The prime minister not being allowed to handle this is part of the problem that this was needed to solve. I agree with you. Why didn't Yuri Levine get up in front of the nation and say, this is what needs to happen, this is why. This is my case. I'm going to give an hour and a half speech. It's going to have all the details. Here's. I'm going to go on a podcast to do this. Okay? People will listen to an hour and a half conversation about something that matters with Gotti Tab.
- [55:20]
B
But you didn't listen.
- [55:21]
A
I didn't listen. I think that was very. I think that was very late in the game. And I'll go back and listen now. Just because I should not have that hole in my education. But he certainly didn't do it in the first three months before the whole thing was blocked and the country was on fire. Why didn't he get up and say, this is what we're trying to do. This is the theory. No more tactics, no more silliness, no more negotiation. We can't live like this. We can't live with this judicial system.
- [55:44]
B
I don't get politics, okay, Honestly, I don't get politics.
- [55:47]
A
That's a fair answer. But that's where I think this whole thing crashed and burned.
- [55:51]
B
No, that is not where it crashed and burned. If one guy has bad bedside manner and the other side refuses to even enter the room to negotiate and instead supports calls for insubordination in the army, that the problem is not with the guy with bad bedside manner.
- [56:07]
A
I will meet. That's politicians. I will meet every call by Khemla, Neshik or whoever they were, all the different organizations of the protests who called for insubordination in the army. When Israel's quote, unquote, no longer democracy, with a similar call from the religious Zionist world in the disengagement, you know, from Smotrich himself. That is not what happened. That is not what crashed. This would crash this for the people running it. I personally deeply support judicial reform. There has to be a reform. I'm sad to hear, by the way, and this is something that we talked about, I think, in real time at the time, that they did not accept that the only thing you disagreed on was appointments. Arguably, appointments is by far the most important question in a judicial reform. And appointments has to be reflective of the nation. And so that's not a small thing for them not to agree on. What if someone like me, who, on the question, on the judicial question himself itself, finds he's a conservative? By the way, I didn't used to be a conservative. My teachers are people like Alex Jakobson, student of Amnon Rubenstein. I don't know how I suddenly found myself a conservative. My conclusion is the left went crazy. A lot of us have been feeling that at various times over the last five years, right? But what does someone like me do when I try to approach this issue? And I cannot, I cannot stand before my friends, my colleagues over there on the left, and seriously legitimize how it was handled, but not how it was handled. As if the only problem is the aesthetics. What did these people actually want to accomplish? I don't know that Netanyahu is a Democrat. Not only that I refuse to be told to trust that Netanyahu is a Democrat. Show me the checks on him. Show me that will be in place when this is done. Or I refuse to trust. And they didn't ask for trust and they refused to gain trust and they refused to even talk to the people in normal ways.
- [58:03]
B
I'll go back to our earlier question. What checks are there on the court? And remember, this is not, you know, it was. The court doesn't have in the United States that they don't have. They don't control the purse and the sword. Okay? Now tell me why the Israeli court does not control the purse and the sword.
- [58:21]
A
They can do anything the executive controls in this country. The police and the Shabak and the Mossad and the tracking. There's a lot weaker privacy laws here than in some places in Europe. The check on the executive is critical. And the executive can do things that the court simply cannot do. It simply cannot do. I am more scared of a Bengvir police down the road. I have not yet found myself dead set against the mainstream. But you know what? I'm the kind of iconoclastic. I like to think of myself as iconoclastic, and yet I agree with the mainstream on everything. I'm in a real pickle. But let's imagine that I find myself.
- [58:56]
B
And let me tell you why. Because the median voter. The median voter is the one who decides things, okay? If you look at the median voter, that is always what the government is going to end up doing, more or less. The government cannot deviate by much from that median voter. The median voter in Israel is a Democrat. The median voter in Israel, agreed. Wants their freedom more than anything else. The median voter in Israel wants Israel to be a traditionally Jewish state, not a theocracy, okay? The median voter does not want secret police having too much power. All right? Now that's why you should trust the legislature. You can't trust the court because the court does not represent the median voter. The court is clones itself. The court has basically turned itself represents one very specific part of the country. And that's what should worry you ultimately, okay? Nobody is going to turn this country right into a police state as long as the median voter doesn't want it. And if anybody's going to turn it into a police state, by the way, it is going to be the unelected institution. The unelected institutions that are not representative that are going to do it. Those are the people you should be worried about.
- [60:22]
A
One last question on this issue. What if I'm Arab. What if I am a member of the Arab minority of Israel? This is a very diverse group. There's some very religious, very secular, urban progressive communists, you know, rural Bedouin Islamists, all within this one community called Israeli Arabs, many of whom consider themselves Palestinians first. Many, many surprising number consider themselves Israeli as their main identity. You come to the state as an Arab, you have interests as an Arab. They could be zoning interests, they could be economic interests, education interests. You know, the ability to appeal easily to certain government grants a thousand things that an Arab citizen in this country has to deal with the state and nowhere, because they are 20% of the population, they are nowhere the majority. And they are locked in the middle of an ethnic dispute between two peoples that a great many forces are trying to make a zero sum dispute. And so they're in a very touchy and sensitive and delicate situation. And I come to the state and the Supreme Court has been weakened and my ability to appeal has been weakened. And ultimately executive power is the decider. What protects me ideally in this situation, is the court able to protect me in the ideal court that you would like to see built? What about the minority, never mind Khaviv, the mainstream Israeli Jew. What about the minority?
- [61:52]
B
Yeah, there are lots of minorities here, by the way, not just Arabs. You could mention Haredim is a particular.
- [61:57]
A
They're the biggest and most contentious one.
- [61:59]
B
Okay? In any event, the answer is that I think that in an ideal system of checks and balances, and again, not really ideal, but say the best you could possibly do there, there is in fact judicial reform. There is a constitution that protects minority rights, okay? And this is handled in a reasonable way. I'm not, I am never, I have never advocated for and will never advocate not having judicial reform. I understand the vagaries of log rolling in politics, okay? I understand that the one thing a majority can agree on is to screw, you know, the least preferred minority at that moment. Okay, I get that. And I want us to have a constitution that guarantees minority rights and freedom for everybody. I want a judiciary that will protect those rights using a constitution. I want all that. What I don't want is for the court to have unlimited power so that it can guarantee that its preferred types of people are the ones who maintain all the unelected institutions of government. That's what I don't want. And that's what we have now.
- [63:15]
A
So judicial reform, coupled with a serious constitution that takes care of these questions, that examines them seriously, that passes them with the power of a constitutional law, actually strengthens the Supreme Court in this role where we desperately need it and weakens it and all these other crazy roles that it has gone overboard on and that have no kin, no analogy in any other democracy. That is basically the vision. And I think people are now starting to guess that you and I generally agree on this issue, but we disagree on this political class. A lot of what's happening here is actually a profound. Well, I'll let you take it. Generational change.
- [63:56]
B
Indeed it is. Okay? So let me tell you, besides for speaking to these legal eagles with whom we reach compromises, and besides for trying to get politicians into the same room as each other, I did one other thing. From January 4, 2023 until October 7, 2023, which was speak to all kinds of people who were opposed to judicial reform, right? And I discovered something astonishing, okay? Almost every one of them, my first question was, what is it about this reform that upsets you so much? Okay? Just I want you to point to the particular aspect of this that bothers you because I promise you, whatever it is can be fixed, okay? Now, without fail, I'm talking now about pilots who said they wouldn't fly and high tech people who were taking their money out of the country and former government ministers who were now embittered and former heads of security organizations in Israel, okay? All of them, okay? I would always open with that question and they would always respond with, what do you think we're a bunch of lawyers? You think we know what's in the reform? We just know that we don't trust you people, but we trust the courts and therefore we're opposed to whatever it is that you're doing, right? I said, how do you imagine we're gonna reach some kind of a compromise here if you can't even be bothered to read what's in the reform, okay? But this is happened again and again and again. And the second thing they would always say is, wait a minute, what happens if we get a really, really bad government? And who's going to save us if not a benevolent court, right? So I say, wait a minute, imagine that we're now 20 years from now, okay? How do you know that we won't have a bad court? And the only thing that could save us from that bad court is a benevolent government. And they just could not imagine this, okay? They could not put themselves behind the veil of ignorance and imagine this situation, okay? Because right now, I mean, they would say this. I mean, I don't like, I don't like, you know, psychologizing, you know, people who Oppose my opinions. It's unfair, it's tacky, it's wrong, okay? But they would tell me this, okay? They would say, look, there's an old guard that's run this country since 1948. They're cosmopolitan people, okay? And then there's these new upstarts, right, who seem very, very provincial to us, okay? Now we can't have these provincials running the show without the old guard running all the institutions, right? So, I mean, literally a guy says to me in a room full of people, he says, you know, I'm a big business guy. I employ a lot of people. Do you really think that my vote should count the same as a taxi driver in Beit Shemesh? I said to him, wait a minute, you're the guy screaming democratia. I said, that is the textbook definition of democratia, okay? They literally said, look, we need to keep the power with unelected institutions. We need to keep our side in control of these institutions because otherwise Israel is going to be a dictatorship, a theocracy, anything but a democracy. They would say this to me, okay? Now I began to understand that what I was doing was completely futile, okay? Judicial reform was not going to solve the problem. If you have a group of people who hold a lot of power for legacy reasons, okay? And who are convinced that the people who wish to replace them are a bunch of malevolent, primitive morons, right? They're not going to give up that power if I change a law, okay? They're not going to do it. The court will simply not respect the law. It just won't respect the law. They are going to keep their power one way or the other. They were very open about it, okay? And you mentioned religious freedom before. I just want to tell you something, okay? You imagine that the court by its very definition is always going to be the one protecting people's religious rights, okay? Now you understand that we had a situation a couple of years ago in which universities and colleges in Israel wanted to encourage Haredim ultra Orthodox to come to their institutions. And one of the ways they wished to do it was to have gender separated class for classes for them, for men and for women, okay? Now this, this case was brought to court now again, by, by people with no standing because all the people involved wanted this, okay? The, the universities wanted to do it. The Haredim wanted the classes, okay? There was no issue of coercion over here, okay? A petition was brought to the court. The court ruled that, in fact, having. Despite the fact that there's an actual law that says that you can have gender separation for religious reasons. Okay? The court said, but that's just an ordinary statute. It goes against the basic law, dignity of man, because there's no dignity without equality. And there's no equality if there's separation. There's no separate but equal right, and therefore you can only have separate classes under conditions that the court will allow. Right. Now you understand that what the court was saying here is that if you want a mechitzer in your shul, you will. The court will have to decide whether or not you can or you can't based on unclear criteria. But it is completely. The ruling limited to publicly discretionary.
- [70:39]
A
It wasn't just because the universities are public institutions owned by the government, funded by the government.
- [70:44]
B
They specifically raised the question of private colleges. And the court said the same exact rule applies in private colleges not funded by the state. Okay, that would have been a legitimate argument, by the way, but that's not the argument they made. So I mentioned this case, which many people may not be sympathetic to. Okay, but. But I mention this case so that you should understand that what is at issue here is not do we wish to have more power to the court, which is always protecting our rights, or the government, which is always threatening our rights. I don't believe that's the case. It should be the right of a. Let's take a private college, okay. Of a private college to offer gender separated classes to people who wish to have them. Okay? There's no.
- [71:32]
A
In fact, there are colleges. How do they solve this problem? They're haredic colleges that are gender separated. Totally.
- [71:40]
B
Yes. The answer. The end. The answer. Well, and there are yeshivot that are gender separated and there are shuls that are gender separated. Right. But the answer is that the court did not issue a blanket prohibition on separation. The court said, well, we'll allow it under particular conditions. So you can have it, you know, in first degree classes, but not second degree classes. You know, you could have it in these subjects, but not those subjects. Okay, but the point, the point I'm trying to make is that at this point, the very idea of freedom of religion in that particular respect of gender separation is completely at the discretion of the court. There is no law, There is no law that can anchor it so that the court cannot change it. Because the court. Okay, that's the point.
- [72:33]
A
I'm going to read that case because it sounds like. I take your point, I take your point that there's no law. What is the court ruling on? Even if the court's ruling might Be reasonable. The difference between primary and secondary classes might mean classes that women need access to. Right. It's not adding additional separate outside classes only for men. It's in fact changing the inner structure of the university in ways that disadvantage women. I could see the problem there. And so I have to go into the details, but I take your point that arguably this is something that should be resolved by the Knesset. What if we have a judicial, excuse me, legislative system, an electoral system where the minorities, mainly the Haredim, but others have done this, have massively disproportionate power and therefore there isn't something pushing back. In other words, you say there's this cultural generational shift question, but how do we know that they're wrong? I want to know how I know that they're wrong. The people who say, look, there's this cosmopolitan elite that has run this country and now the provincials are trying to take over. There could be some of the Ashkenazi Mizrahi bigotry there, right? Likud is, you know, Likud versus Yeshatid are, they're small majorities, they're Mizrahi, Movot, Yeshatid and Ashkenazim who vote Likud. But nevertheless Likud is more Mizrahi and Yeshatid is more Ashkenazi. There could be many, many of these generational things happening. There could be many of these cultural divides happening. But there's also an Israeli elite that built this country and it is a meritocratic elite. It's not families. There are a few families, the Herzogs for example, but it's largely a meritocratic one. And if not for the budgets department of the Finance Ministry, if not for the planning division of the Israeli Air Force, if not for certain self replicating elites with very, very high standards who think of themselves as serving elites, as service elites, this country would be in a very different place. It would not have a GDP per capita of higher than Britain's. It would not be able to have fought the 12 day Iran war. And the people that I see being appointed today, I'm just going to name names if that's okay. Duduum Salem of Likud is in charge of Likud's appointment to government corporations and he's appointing and this is a huge scandal and people talk about it in the know. Nobody in the press is interested and certainly nobody in the English speaking world has any clue this is going on. But Likud is appointing en masse, everybody's best friends to Major government companies. There is a level. I'm going to do an episode about it. People don't understand why I'm so angry at Bibi. Mainly I'm angry with him on the domestic stuff, on the management stuff, on the gutting of government institutions, on the fact that I will go out there into the world and I will say to a crowd, somebody says to me, what do you got against Bibi? And I'll say to them, forget Bibi, who's the foreign minister of Israel right now, and nobody in the room will know because there has been a process of centralization of power around Bibi that has made most of the ministries of government that used to be these powerful fiefdoms with responsibility and serious policymaking into something much less. Likud is running this place and there's going to be an episode about it in a way that is centralized and also corrupt for the party. Now this, it's not a new thing. We've had corrupt Israeli parties in the past.
- [75:47]
B
Thank you for getting around to that point. You know, we had, we had a Mapai government from last year.
- [75:51]
A
We had a Mapai government. My argument, my argument is Likud has rebuilt the Mapai system. That's my argument. And it has done so while pretending to be terribly victimized, even though it's been mostly in power since 1977. And so there is a culture of irresponsibility, of victimhood and a refusal to be serious, competent policy.
- [76:11]
B
Dave, what do you propose? I'm proposing democracy. What are you proposing?
- [76:19]
A
Democracy isn't enough. Democracy has never been enough. The founders of America who gave us the first American democracy were terrified of the mob. The entire system is built so that the majority doesn't get what it wants. That's why the different institutions are separated by how they vote, by how the subsectioning of the population. A member of Congress, a member of the Senate and a President are actually elected from different cross sectioning of the population to make it harder to produce a majority. They're separated by time, the term of two years and four years and six years to make it harder to produce a majority. The founders were terrified of direct democracy, of too much democracy. And so the question has always been, since the days of Aristotle, not democracy. It has to be a democracy. I'm not sending my kids off to an army that actually has to fight a war. If I think a Putin like dictator is going to decide whether or not to send them to war, Israel will collapse. If it isn't a democracy, it has to Be a democracy now, What? How does that democracy function? How does it not allow something that nobody wants to be the law of the land for generations? Which is the current situation on religion, it's the current situation on the Haredi welfare state, it's the current situation on 100 issues. How do we checks.
- [77:29]
B
And yes, somebody, somebody needs to decide these things, okay? Now you can. You can either have these things decided by the elected government, which you may very much dislike, okay? And as I said, I dislike all governments, okay? You can either have it decided by an elected government or you can have it decided by some unelected elite that have somehow managed to get themselves into various institutions and will not give up their control of those institutions. And if the government tries to replace them in those institutions, the court and the Attorney General will not allow it to happen. Okay? That's your choice. Let me just. I mentioned before the issue of the Civil Service Commissioner, okay? This is such an amazing and illustrative example of what's going on, okay? The head of the Israel Civil Service is a government appointment, okay? And the past Civil Service Commissioner's term ended and the government wanted to appoint somebody else. The Attorney General comes to the government uninvited and says, listen, I think that you should not be appointing this person in the procedure that it says in law, because I don't like that procedure. It gives you too much power. I think that the procedure should be that there should be a committee headed by me, the Attorney General and the other members of the committee should be appointed by me, the Attorney General. And that's the way you should appoint the Civil Service Commissioner, okay? So the government said, why in the world would we do that? It's been done this way since 1948. And we're going to appoint the. Okay, so needless to say, some random person or organization petitions the Supreme Court on this matter, right? And Yitzchak Amit appoints himself to be the head of the panel and writes the decision.
- [79:33]
A
The Chief Justice.
- [79:34]
B
The Chief Justice. The Chief Justice. And he writes in this decision. You can look it up, Khabiv. Okay? He writes in this decision. Look, yes, it does say in the law that you can, but I just think that you're like, really a bad government. So we can't possibly let people like you appoint the Civil Service Commissioner. We accept the position of the Attorney General that there should be a committee headed by the Attorney General and they should do it. This is a ruling. What are you going to do now? Okay, this is where your elitist notion that we, oh, if only all of these really, really good people who run the Air Force would, you know, run the country. We won't get into this morass of having duty amsalams running things. Okay.
- [80:21]
A
When I challenged you in one of our conversations, I don't know, a year ago, two years ago, whenever it was I challenged you that Likuda just being catastrophically irresponsible, you made a very good point and I want to raise it here, which was that one of the reasons they're catastrophically irresponsible, I don't know if you said those words, I don't want to get you in trouble with your friends, but as I would put it, catastrophically irresponsible leadership is that they genuinely don't feel responsible for their own actions because there's always a court, because there's always someone else that they're fighting even just to get anything done. Let them work, let them fail. And if they fail, they will have to answer to voters. And that is the healthy correction mechanism. And so even the argument that they're bad and therefore fearing them being worse is a reason to keep all these protections in place actually prevents the democratic correction mechanism from acting. I want to know if you still believe that and if you do believe that, I want to challenge it on the simple point that Israelis are a very weird democracy. We vote and this is my last question and then I'll stop haranguing you. We vote tribally, deeply and consistently and for many years. And we don't vote on issues. Nobody on Likud side, nobody on Yeshatitza, nobody on the right or left read the judicial reform. Really very few people did, but they really were responding deeply to trust and to this identity question that is reflected in our elections. In other words, the different parties that are elected to the Knesset reflect different religious and ethnic and cultural subgroups that are profoundly tribal. This country behaves on election day kind of like Lebanon behaves on an election day. I don't know if it's quite that extreme, but if you understand it that way, you will suddenly understand Israeli behavior. And if that's true, can we self correct what do you tell a center left that demographically can never win an election again? Is it going to be a self correcting Likud? A healthy Likud? A Likud with less of the corruption that we're seeing now? If they can't lose elections all that easily, what happens then?
- [82:29]
B
First of all, I don't think I really, really, really don't want to get into Politics. So I will say as briefly as I possibly can, that after Bibi, which may be sooner than you think, the Likud is no longer actually a viable party. It's two separate parties, one being the old liberal Herut party and the other being a populist semi socialist party. And I don't see those two parties holding together. And I think in any event, we need a new right wing party that is untainted by October 7th and by bad deals with Haredim. And we'll probably get another right wing party like that. Once upon a time, Naftali Bennett wanted to be that party, but that's a whole other story that I don't want to get into. And that is as much politics as I'll talk about. But to answer your more general question.
- [83:19]
A
You think Israeli democracy. I'm sorry, you think Israeli democracy is corrective. You think Israelis don't vote as tribally as I think, therefore, I think they.
- [83:27]
B
Do vote tribally, but depending on. I think that is changing because the nature of the tribes is changing. Okay, so let's dig into that. Okay, let me put a question to you. I want to hear what you think about this for a moment. The court often tells the government, oh, you made that decision. Well, we're disqualifying it. Okay, Null and void, right? We don't really have much law to back us up, but we're just telling you it's null and void. And the government always backs down. They tell the Knesset, oh, that law unconstitutional. I don't, we don't have a constitution. We just invented. We invented something here and we're striking that there. The Knesset always backs down. Okay, now why has it never happened in all right. In all of these contentious times and battles between the branches, why has it never happened that a minister or prime minister or Knesset members say to the court, oh, you had no authority to make that decision. Your decision is null and void. Okay, how is it that that never happened? Have you thought about this question?
- [84:44]
A
I, I think the vast majority of those cases, the politician knows that it'll be knocked out. And so the stuff that they actually want to get done, they get done within the bounds that they think will be acceptable in the first place, which is itself a kind of judicial overreach. But, but it's not.
- [85:01]
B
That is not the case. There have been cases where, where, you know, like some, some Gary Pinchasi.
- [85:10]
A
Let's not take the right wing, let's take the left wing. This judicial overreach begins with Barak. I mean, it begins in the 50s. But it becomes this monster against the left wing government, against the Rabin government. Rabin was terrified at losing Darien Pinchasi because the Shas minister because he needed Shas vote to pass Oslo. The Supreme Court begins to expand his power against the peace process. And Rabin begs to be represented in the court. His Attorney General doesn't have to represent him. Him refuses to represent him. And the most that the Prime Minister can get is his letter being handed to the judges written. He can't even show up in court to make his case. Why would Robin not say, screw this? That's not in the law anywhere. What the hell are you doing? I have no idea. Why would Robin not say that?
- [85:55]
B
Interesting question, right? So it happens again and again. The answer is asymmetric prestige, okay? The question is, how much do you think you can get away with? All right? How much do you think you can get away with? The court is fairly confident that no matter what it does, it could just make stuff up, right? It will get away with it, okay? Because it knows that it has all the. All the. Not. Not only the very powerful people, but just general sentiment, right, that, yeah, they're okay, they're probably not doing anything too insane, right? They have prestige. The court has prestige, all right? Now, the government has not felt that it has equal prestige. And they were afraid that if they would say to the court, no, we're not doing that, that the histad route would go on strike and then the pilots in the air force would stop flying and. Right. Et cetera, et cetera. Right? They are afraid. They are afraid that they simply lack the prestige. If they felt that everybody would come out and say what he said, right? They would say it. They would do it, okay? And that's. And that's exactly what the court is doing right now. The court is convinced it can get away with things, okay? Now what I submit to you is this. That is changing the prestige, the prestige that the old guard built up over many years and had. And primarily because they do control most of the unelected institutions, that prestige has shifted. It shifted. First of all, during the reform, during the battles over reform, everybody saw calls for insubordination, all right? Everybody saw it, okay? When you cross that red line, you might win that battle, but you have lost a certain amount of prestige. Everybody saw that they were. They would block the ILO in Israel's main artery and build bonfires on it. And nobody got arrested, nobody got indicted, nobody got convicted. Everybody remembers that in 2005 when people on the wrong side of the railroad tracks, contemplated getting on a bus that would drive them 100km to a protest where they might block traffic. People got arrested, okay? Everybody knows this. They know that 700 people were charged with crimes during protest against the hit. Not quite. And one was charged in protests against judicial reform. Everybody saw that.
- [88:33]
A
Now, against the disengagement from Gaza in 2005.
- [88:36]
B
Disengagement? Yeah. Now when you do that again, you win the battle, okay? They closed down the ILO and they brought the country to a standstill. They blocked judicial reform. They won that battle, but they lost prestige in the process, okay? In the war, okay? I remind you, everybody has seen the video a thousand times of this guy from Achim Laneshek, whose name I won't mention, though I know it, okay? Standing there, listing, listing, listing all of the army units that were not going to fight, that were not. That were. That were what they call not volunteering, okay? That were not going to report. And he mentions the air Force, and then he mentions Golani and Givati and et cetera, et cetera, right? As if. Now the impression they were giving is they are the army, right? Everybody else. Everybody else are a bunch of shirkers, right? They're the army, the old. The old elite, the Ashkenazi secular elite, let's call it by name. They are the ones who really are responsible, who are the army, including all these units, Golani, Givati, et cetera, right?
- [89:51]
A
What do you make of the fact that we don't have a single report of a pilot missing, of a golanchik missing? They all went to the war. None of that. Actually, they were talking in a certain.
- [90:03]
B
Way, but they weren't. That threat worked. Now, one second. If you tell me they were just bluffing, I tell you. Excuse me, it doesn't matter. They were using army service for political purposes, okay? Whether or not it was sincere, the fact is nobody knew if it was sincere and therefore the threat worked, okay?
- [90:26]
A
So do you think they thought that this was a threat to democracy?
- [90:30]
B
That they. How could they possibly have actually thought that? Khabib, we've been through it. There was nothing in it that legitimately threatened democracy, okay? And again, every time I asked them how it threatened democracy, they failed to tell me, okay? This was not about democracy. What they thought was that this was the end of their hegemony, not that it was the end of democracy. Of course, people in their own minds identify the end of their own hegemony because, of course, they are the only democrats, right? They identify that with democracy. They are two separate things. They were protecting their power, their disproportional power. But that isn't even the point I'm trying to make here. The point I'm trying to make is they spoke in the name of the army as if they were the army. And then a war broke out, okay? And day after day, we saw the battles going on in Khan Younis, right? And then eventually in Rafia, et cetera, et cetera, we saw these battles going on in Sajairiya, etc. Etc. And we saw who was fighting them. And it was really, really all of Am Yisrael. It was not Achim La Neshek, okay? As much as they tried to push themselves forward and put their labels on everything, okay? The people who were fighting this war were from all the different parts of Israeli society. The religious Zionists were overrepresented, not underrepresented, and Achim La Neshik did not speak for them, okay? So once again, the point I'm making here is that they lost prestige. They lost prestige because they had made the case that they were the army. And the whole country saw that they were not the army, okay? And as they lose prestige, the balance of power shifts. And when the balance of power becomes even, okay, when it's even, when each side has equal prestige, then it will be possible to do reforms that don't push all the power to the other side. That's not what I'm suggesting, okay. But rather make arrangements that are fair so that everybody is represented in all of the unelected institutions, so that the branches of government have reasonable checks and balances between them. I think this is going to happen. I think when this generation of fighters now come into power, not in the coming election, but in the one after it, we are going to see a significant generational transition. Not because all of these people are going. They are definitely more traditional than the previous generation, but they are. I think they fairly represent the nation. And I think that they find most of the arguments that you and I are having childish, and they think that there should be no difficulty in reaching compromises on all these issues. And I agree with them because I myself have reached compromises on these issues, which unfortunately were swept aside because some people prefer the status quo.
- [93:38]
A
It's interesting because I've had a lot of conversations in the last three years on judicial reform with a lot of different kinds of people, and I have seen more anger. Do you watch Channel 14?
- [93:52]
B
I do.
- [93:53]
A
I see less willingness to compromise there, maybe because there. There's also more of A sense that it really is about hegemonies. And so the Gadi Taub analysis of Israeli society and I've seen less willingness to produce the kind of constitution that you would like to see produced. I think the left went haywire. I think that the left fears losing hegemony. I also think that the left has kind of been getting used to losing hegemony for, you know, since the second tifada, basically for 20 odd years. But I have not seen, I am open to the right's arguments. I have not seen a right that has given me even just an elite group, even just a narrow, respected, prestigious group within the right that's willing to build institutions. I haven't seen it. Yes, but you know, name someone else. Name someone in political office. Name someone who is willing to build a second parliament to check the first parliament or pass the Danish system of primaries on the back of the ballot of the, of the national. You know, we've been partyless system or we have, we have to separate, you know, you. But, but you have to go. I don't know what that means.
- [95:11]
B
You don't give people enough credit because.
- [95:13]
A
I don't know what it means.
- [95:14]
B
Yeah, about policy. Okay. You just watch them on the news. I am telling you that all of these things, again, I am trying to get to fair mechanisms that will allow compromise. Okay.
- [95:27]
A
Bibi would back something like that. Likud's top front bench would back something like that.
- [95:31]
B
Yes, yes.
- [95:32]
A
Motrich would back something like that.
- [95:33]
B
Yes, yes.
- [95:35]
A
Okay.
- [95:35]
B
Yes. We work on these things all the time. And I speak to these people all the time. And yes, there is definitely willingness to talk about these things. Okay. But I'm not going to get into politics. I'm not going to tell you. Oh, and by the way, people that you think are fantastic in the opposition are actually opposed to it. Okay. It so happens, by the way, that this particular thing. Please tell me that Gantz is in favor of this particular one.
- [95:59]
A
But I wish, I wish they said it out loud. It would go a long way to solve a lot of problems. There's a lot of people in the middle. There's a lot of people in the middle. The Supreme Court is still the second most trusted institution in the state and it has collapsed. Its trust has collapsed, but it's collapsed to about 45%. The army alone is at 80%.
- [96:24]
B
45 is absurd because the baseline for political parties or The Knesset is 50%. Right. Because there's always half the people support.
- [96:36]
A
It's collapsed to partisanship. It's collapsed to partisanship.
- [96:39]
B
The Cornerstalk should be 100%. Okay?
- [96:42]
A
The Knesset isn't at 20%. The Knesset isn't at twenty percent. It has collapsed. And the people do not trust this generation of leaders to do the thing that we need them to do.
- [96:55]
B
Four years from now, we're going to get a new generation and then things will be a lot better.
- [96:58]
A
Amen. Moshe, thank you so much for joining me. I hope people learned a lot and write all your angry emails to. What's your email? Moshe no, I'm just kidding. Thank you very, very much.
- [97:11]
B
Really been a pleasure. Thanks a lot.