CYMI: The Judicial Reform Movement in Israel: Facts vs. Hyperbole - EMET
Lauri: Good evening everyone, and welcome to this afternoon’s Emmett Webinar on what’s going on in Israel with regard to judicial reform. I am going to make the introduction very brief ’cause we’ve got a lot of issues to discuss, and we have an esteemed panel. I’m very excited to be discussing these issues with Avi Bell, who is an international law professor and legal expert who is going to provide great insights to us. And of course, Jonathan Tobin, who is a prolific journalist and editor of JNS. If you would like further information on their bios, you can go to our invitation. I hope to get us to questions at the end, but we do have a lot of topics to cover. I did want to share with everybody before we start that please save the date. December 5th, we are going to finally have our first live Raise of Light in the Darkness Gala, at the Grand Hyatt in DC.
We are going, it’s going to be unbelievably special. We’re going to be recognizing Israel’s 75th anniversary and the historic Abraham Accords. And among our honorees, this year will be Secretary of State Mike Pompeo, Congressman Richie Torres, and retired MBA star Inez Cantor Friedman. So I hope you all can join us. I want to start, I’m going to dive right in here. Start with you, Avi, and ask you to briefly provide background on Israel’s judicial system explaining the judicial revolution under Iran Barack’s 1990s reform or revolution that led to the need for the reforms today. In that context, can you discuss the reform proposals designed to bring the court back to the pre-Barack days during which the court was more aligned with the US and other Western democracies, including the recent law passed by the Knesset, addressing the reasonableness test, which allowed the Supreme Court to overturn legislation and administrative actions giving an enormous discretion, often with arbitrary results? So doesn’t a portion of the Israeli citizen rate remember the pre-Barack days when the country operated according to the British model, and see that since Barack’s judicial revolution, Israel’s Supreme Court operates with authority like no other in the world?
Avi: So yeah, I mean the public reaction is its own can of worms. And we’re going to get to that as we go along. So let me just address the first part of your question first. And I think that this is maybe the most important thing for anyone who wants to understand judicial reform, to understand it. Judicial reform is not an independent movement. It’s a reaction to something. It’s a reaction to a very significant change that happened in Israel’s legal system primarily during the term of our own Barack on Israel’s Supreme Court. He became Justice in 1978 and left stepped down in the early 2000s. But it’s also his successors, Esther Hayut is barely been Chief Justice for about 5 years. And she has done in her short term some things that in many ways are even more revolutionary than anything Barak did.
And the whole judicial reform movement is a reaction to that. The question is, was Israel better under its own legal system pre-Barak, or is it better off in this new hyper-activist, Juristocratic system? Now the old system, old Israelis will remember it was basically as you said, a British Westminster parliamentarian system. The Parliament was a supreme. Israel never had a US-style separation of powers. It has a British-style separation of powers where a government is appointed by the parliament, and it stays as long as it enjoys the confidence of the parliament. If the parliament loses confidence and it can topple the government, it doesn’t have to bring about new elections. So Israel has had about 25 Knesset, right? 25 parliaments, and it’s had about 40 governments, right? 37.
And because governments are even more unstable than the parliament and the parliament [?], parliament is pretty unstable to begin with because it has proportional representation. So parliaments never last their term, and there’s never a majority that controls the parliament. Now, that was the old system, and it produced a reasonably well-functioning democratic government. And then Barak decided to change things, and Barak changed the legal system from end to end. It was not just his constitutional revolution. He coined the term, by the way, constitutional revolution to describe the things that he was doing. He claimed with authority from his interpretation of the law. But he coined that for things he did in the 1990s. But it wasn’t just that, it was private law, was the jurisdiction of the court. It was everything imaginable.
And the most controversial things are the things we’re arguing about now. So one of the things, maybe the most controversial is that he declared the court had the ability, notwithstanding the absence of a constitution to strike down legislation by the Knesset. Now, this is unknown in the Democratic world to be able to strike down legislation without a constitution. And there’s a reason for that. That is a constitution is not just an authority for judges to strike down laws. It’s also a limit on the powers of judges. What you’ve seen Hayut do in the last few years is she’s taken the power that Barak created, and she’s invented variety of new doctrines as she goes to strike down laws, basic laws, delay their implementation, anything else in the sun. And it’s possible to do this in a system where there’s judicial review without any anchor in law, without any limit in law, because she simply makes it up as she goes along and there we are.
And so the reform is designed to clip some of the most extreme of Barack’s innovations. If you ask me personally, I think that it doesn’t go far enough. The reforms that are being discussed now are not the only judicial reforms that have ever been proposed. They’ve been proposed over the last decade, 2 decades. And this is a version that’s built on compromise proposals that were advanced in the past. The craziness that’s enveloping the rhetoric about this really has nothing to do with this. The basic choice that we have is still the same one that we had when the reform proposals were introduced several decades ago, which is, are we going to return to being a functioning parliamentary democracy like the rest of the democratic world? Are we going to continue veering off into this path of unlimited, unaccountable, unlawful power by judges that can do anything they want and are liable to drive us into a very dangerous place?
Lauri: Can you just also touch on, before we turn to Jonathan, I think it’s important for everybody to understand how the justices are selected.
Avi: Sure. So Israel has had, over the years, 2 different selection systems. So the initial state system that Israel had was that the government proposed nominated judges, the Knesset approved them. And then in 1953 a basic law, the judiciary was adopted, and it changed the system. It basically handed over judicial selection to a professional committee, which was in the 1950s, something that was plausible because the judges had fairly limited authority. They were strong independent judges, strong even then by the standards of Western democracies. But they couldn’t overturn laws. They knew better than to get into politics. They saw themselves as bound by rules of some things like justiciability and political questions [?]. And so then it was handed over to the committee. Now, when Barack came in, he both changed the nature of the law, and he changed the politics of selection.
So he basically took over the committee. At the time, there wasn’t a formal veto for the judges that were sitting on the committee, but now, there is, right? You can’t be appointed to the Supreme Court today without the approval of the 3 members of the Supreme Court that are sitting on the committee. That vote is a block. And the result was that Barack on behalf of the Supreme Court, took over judicial selection to the point where the judges select themselves, right? The Supreme Court is a group of judges who have so been selected by the judges, in part because they support this expansive notion of Juristocracy.
Lauri: Okay, thank you. Jonathan, I want to ask you what’s really going on in Israel with the anti-judicial reform movement and the accompanying protests, and the disruptions of daily life. What is this really all about Bibi called the proposed reforms, a minor correction to bring things back to the middle, but the left in Israel is calling reform the end of democracy. Is this really about saving democracy and real concerns about the separation of powers? Or is it about overthrowing the Netanyahu-led governing coalition and what I would call Bibi derangement syndrome? Or is it something even more nefarious, but related, which involves minimizing the religious majority’s power? I’m sure that there are some protesters who truly believe that they’re fighting for Israel’s democracy, but people like Gadi Taub, for instance, have described the democracy claims as quote, “a mass for ethnic prejudice, which involves a power struggle between the secular left is embodied in the Liberal Supreme Court, and the more religious nationalists embodied in Bibi’s conservative governing coalition”. To me, it seems more like a Tel Aviv versus Jerusalem, Ashkenazi versus Sephardic, deplorables versus elitist power struggle. And in fact, reminiscent of Hillary Clinton’s deplorables comment, Yair Lapid actually stated, and I quote, “Do we leave the world to the ships? Those who disgust us would win. I won’t let those disgusting people run my life or the country”. So what’s really going on here, Jonathan?
Jonathan: Well, Lauri, thanks, number one for inviting me to join this very important Webinar. Everything you just said is part of the story. This is above all, not an argument about constitutional law, such as, scholars like Avi Bell and his fellow law professors would argue about this is not something a debate between people at the Brookings Institution and the Federalist Society, to put it in American political context, where people talk about who’s the real activist judge. This is about politics. It is about power, and this is about a power struggle within Israel that must be placed in the context of at the very least first superficially, in terms of what has been going on in Israel over the last 4 years. We quickly forget certainly everything in journalism, what happened yesterday is history.
What happen the day before yesterday is ancient history. But for 4 years, Israel has been locked in this battle over whether Netanyahu would continue as Prime Minister. For 3 years, there was a stalemate, several inconclusive elections, because there were parties that were nominally on the right, had broken with Netanyahu, and no longer wished to have him as Prime Minister. And that became the sole issue, Bibi or not to Bibi. That stalemate was broken last November when Netanyahu and his religious and nationalist allies, 1 for the first time in a few years, a clear majority in the Knesset election that was held on November 1st. That set up unique circumstances over the course of the last generation of Israeli history because Netanyahu was not able to establish a government, a broad government, a government that would have some centrist, so-called centrist parties, or left-wing parties, as he’d always been able to do in his 4 previous administrations.
Instead, the lines had been drawn so starkly, Bibi or not to Bibi, that everybody who had run on one side of the spectrum refused to join his government. He was left with his religious Zionist party, which quickly broke into Otzma Yehudit and religious Zionists, and the two Haredi [?] parties. Very actually tight, unusually cohesive Israeli government people who generally agreed on most issues. But that left the people who had just lost the election feeling as if the world was about to end, because Netanyahu actually would remain in power, and the right could actually govern, or at least have the potential to govern. And so what we have seen, the easy analogy and its analogies between the United States and Israel are always somewhat facile because they’re 2 very different countries with 2 very different populations and sensibilities.
But much like the election of Donald Trump, who he’s nothing like Netanyahu but his election in 2016 set off a resistance on the left, a resistance that not only set a million people into the streets on the weekend of his inauguration, but also the Russia collusion hoax the whole effort by the media, by the liberal political establishment, and indeed much of the security intelligence establishment to topple him. The same thing happened in Israel, but the correlation of forces, as the Soviets used to say, are very different in Israel, as much as American conservatives think of the media being left-wing in the United States, and most of it is, in Israel, it’s almost uniformly left. And the politic, the legal, academic, business, security establishment remains very much identifying with the parties of the left-hostile Netanyahu.
And what was set in motion was a resistance movement that was going into place even before the debate shifted to plans to enact judicial reform, which had been in the works, which had been something that Netanyahu and his allies had run on. And what happened was that even some of the sort of low-hanging fruit, there were very few people in the opposition, people like Lapid, as well as people who used to be alive to Netanyahu, like Guidon Sar, who used to be strong advocates of judicial reform. They now took any judicial reform as a surrender to Netanyahu whom they wish to topple. They wish to delegitimize his government. And they turn the issue of judicial reform into something more than, as I say, just a constitutional battle, but actually a cultural war.
A war, as you alluded to before, between Ash old Ashkenazi establishment and the Mizrahi majority in Israel between secular Jews, secular liberal elites, yes, Tel Aviv, and religious Jews. The religious parties got about a quarter of the vote in the last election combined with Alku [?] that gave them a majority. But the liberal majority doesn’t want to with the liberal minority doesn’t want to accept that. And they see the Supreme Court, they have latched onto the idea of opposing judicial reform because they not unreasonably see the courts with this Juristocracy, this overweening power to basically overturn anything, any government does, policy appointment on any pretext, under any circumstances as the way to not merely put a check on the Netanyahu government, but to prevent the right and the religious parties from going. And so the rhetoric in the streets isn’t constitutional rhetoric.
It’s about we don’t want to be governed by the religious, we don’t want them to enact, ban gays, oppress women, all sorts of things that the Netanyahu government isn’t going to do. But it brought up all of the resentments, the cultural resentments between, as you say, symbolically Tel Aviv, which is a little more religious than it used to be, Tel Aviv and Jerusalem between religious and secular, and brought that out. But combined with the power of the media of uniformly left-wing media, which went into, overdrive immediately using terms like coup to describe judicial reform to claim that Netanyahu, was an authoritarian, even though, judicial reform would actually make Israel more democratic. And Netanyahu had just been elected. This was an elected government. And to say that overthrowing an elected government is a defense of democracy, it’s like gaslighting
But it’s akin to the color revolutions of Eastern Europe in the last 20 years, where popular movements take to the streets to attempt to overturn elections. And that’s what we’re dealing with now with lines set really in concrete fueled by culture war sentiments, that actually put our American arguments between deplorables and sort of the suburban soccer moms. The stereotypes of American politics in the last few elections, really to shame it’s much deeper, it’s more bitter. And it’s created a situation where the sort of those opposed to Netanyahu have, are ready to sort of endanger the country’s economy, its security, and to rally foreign governments and foreign Jews, American Jews, to help them overturn this democratically elected government in the name of democracy, which also has to do with sort of democratic party talking points and the 2022 election, that’s the overlap.
But what it is, is more a culture war and a war for political power in which one side the secular left believes that demography is destiny and that the growing population of religious nationalist Jews, which led to the circumstances in which Neto could finally win a majority that is something that the left can’t win any more elections. I don’t know that that’s true, but that’s what has driven the people into the streets when they say they’re defending democracy. What they want is a particular vision of Israel in which sort of the liberal secular left governs and the religious-nationalist, population just takes it, that they could win as many elections as they want, but they won’t be allowed to govern. That’s what’s at stake in this battle. And to sort of claim as many American Jewish organizations, almost all of them leading pundits who are respected as supporters of Israel, like Bret Stephens, not scribbling to engage in this sort of culture war contempt for the majority that just voted in Israel that is fueling not merely just street battles in Israel, but the isolation of Israel in a way that I think has implications for security and for the existential battle to protect the Jewish state.
Lauri: Thanks, Jonathan. You’ve actually touched on a lot of points that I’m going to be raising over the next, couple of minutes. But Avi, I want to expand upon what Jonathan touched on with the various opposition leaders who include, former prime ministers, Amer, Barack, Lapid, who actually once supported judicial reform until the politics that Jonathan raised and the role that they’re actually playing in these anti-reform protests, the media narratives that have erupted. For instance, it’s my understanding that left-wing NGOs funded by the New Israel Fund, and including Peace Now and B’Tselem which are all known anti-Israel organizations. They take regular advantage of the Supreme Court’s lack of a standing requirement. And these groups are now taking an active role in the protest in order to ensure that they have a continuing role in directing Israel policy, despite having no official government role in making policy or standing in protesting policy. So they self-perpetuate the left-wing narrative or excuse me, nature of the court notwithstanding the desires of the vote in public, which as you’ve pointed out, have consistently voted for right-of-center government in 5 of the last 6 elections. Are the protests Avi being funded and organized by outside sources, whether from the Biden administration, which I’ve heard about George Soros’s Open Society Foundation, advertising agencies, political, strategic consultants, other influences that are fanning the flames of the civil unrest?
Avi: I’d rather not speculate about where the money is coming from. It’s true, absolutely that the protest movement is costly, somebody’s paying. I think that’s not the question to ask, though. And primarily because both the movement for judicial reform and the movement against it are being directed in Israel. These are, it is, as Jonathan said about power. It’s a little bit asymmetric. The judicial reformers at least people like me who have been calling for reform since Barak made his changes 20, 30, and 40 years ago. We’re not doing this for reasons of power. We’re doing this because we are trying to rescue Israel’s parliamentary democracy from this aristocratic system that Barack set up, which I think is inherently unstable. But on the other side, I think it is a lot about power.
Some of it is, the sort of abstract constitutional questions of power. I think that the court is fighting for its own power, and it’s being quite our own Barack has given press interviews in which he’s called on people “Don’t give up, stay, go out there protest, shut down the economy”, whatever else. He doesn’t say shut down the economy in as many terms, but it’s very clear from his words that he likes these disruptive protests, including where they disrupt transportation and the economy, and the army. And the idea there is to maintain the institutional power, but there’s also an abstract idea, which is that he has a fundamental distrust of democracy. He has a fundamental distrust of the common masses.
And he believes there’s a large degree of arrogance here, but he believes in the superior power of judges to make moral choices for everyone. And he has distrust for these politicians who listen to the masses making decisions as if they’re in any way qualified to do so. And so that’s part of the push, it’s about power, but it’s about more. And there’s also, there are these there is an elite Ashkenazi secular native Israeli group primarily in Tel Aviv and the kibbutzim. But there’s elsewhere too, let’s say, the old labor elite, there it’s also about power for them. They want the institutions where they maintain power like the court to remain strong. And institutions popularly elected institutions like, the Knesset to be weak.
And that’s what they’re fighting for. And they think that this is good because they believe themselves to be liberal, unlike those horrible unwashed masses that are terrible people, and that against whom they despise and they hate, but they don’t view it as prejudice, right? And so they want to blunt their power and, blunt the opposition to them and enhance their own power. But then there’s also just, very mercenary uses of this power. So he asks about somebody like Ehud Barak. Ehud Barak has visions, and he says this, he is got visions of a mass uprising in which there are lots of people that die. And the masses are yearning for real leadership. And they’ll come to Barack and place a laurel on his head and make him prime minister again.
His concept of what it means to be prime minister is a little bit broader than that. But he imagines himself taking advantage of a civil war to become emperor, right? And he’s been working with many of the protest leaders for years long before this issue came up. He identified screaming democracy as a good way to present their case. But it is fundamentally insincere, right? It’s and then you have someone like Lapid who is mercenary in a different way, the way he understands it. The last government fell because there was instability in the streets and instability among the political parties. And he’s trying to topple this government by making it unstable enough that there, he will be able to peel away a few members in parliament, and there will be a no-confidence vote.
And for that purpose, chaos is much better than order. And that’s really where the fight is. Most people that are advancing this understand that the talk about democracy, the groups that claim, it’s fighting in the name of democracy, are fighting against democracy. The judicial form groups are fighting in favor of democracy. And it’s partly because the anti-reform don’t trust democracy. ’cause they fear the bad guys are going to win. But it’s partly ’cause they just don’t trust democracy at all. They just have this elitist sense of how opinion ought to be made and how decisions ought to be made in society. And we’re fighting about the essence of Israel. It’s just that everybody has got the discretion the description of this exactly reversed, right? The question is, are we going to continue along this path of unlimited power for an unelected elite? Are we going to get back to the messiness of parliamentary democracy, the winner being whoever it may be?
Lauri: And that’s a good transition into my next question for you, Jonathan. And part of the issue that I see is this terrible lack of messaging on the part of Bibi’s government. It was my understanding that he was basically prevented from speaking about the reform proposals due to his court case and that the AG silenced him, which helped the opposition, during these initial stages of protests to control the messaging. And now it seems like it’s too late to walk it back. It seems to me that it shouldn’t be so difficult to explain to Israelis, to American Jews, to anybody who’s being very outspoken and participating in this process. That the whole effort is to bring Israeli courts more in line with the US’ as separation of powers standing and other norms, and that it’s the furthest thing from a threat to democracy.
In that regard, you’ve brought up the media and Haitz [?] canceled at Gadi Tass’s regular column under the guise of defending democracy. And the paper actually forbade its writers from using the term reform, directing them to call it a coup d’etat which is not only a lie, but it’s an inflammatory call for civil war, in my opinion. We don’t read about all the supporters of judicial reform in Israel. We don’t read about the 200,000 supporters who took to the streets a few weeks ago. And there’s well over a hundred thousand Israeli active duty and reserve military personnel on record as rejecting the calls to refuse to serve with IDF military intelligence officers, publishing a public call against refusal to serve, calling for the IDF to remain beyond political debate. So as a journalist, why do you suppose that we don’t hear about any of this in either Israeli or US media outlets? And is it still possible to reach Israelis and I would say Americans for that matter as well, with an honest explanation of the reform proposals?
Jonathan: Well, you’ve described the problem very well. I would just add one coil [?] so, one American outlet where you can read about it is jns.org, American and Israeli outlets. So I recommend that our viewers go to JNS every day to read some of the things that you’ve just mentioned. But there are 2 factors here, and you’ve outlined them, well, number 1, Netanyahu was prevented from speaking about this issue in the early stages. The context for that is the force, so, the corruption trial that has been going on in which Netanyahu has been charged with various crimes. It’s been going on for more than 2 years. These charges are incredibly flimsy. I’ll just editorialize there. They’re based on things that really aren’t even crimes in any way.
We could spend a whole hour just discussing that, the most serious of the charges. The judges have already indicated that he’s not going to be convicted, but yet the prosecution continues because that is essentially a political prosecution. And this also illustrates, how this Juristocracy, a problem that Israel has in that it’s not just the Supreme Court, although the Supreme Court and its refusal to listen to any norms and to rule on anything it wants un under any circumstances. It’s judicial advisors to each government department, the power of the Attorney General which can over, unlike anything in any democratic government in say, Britain or the United States, can overthrow, overrule the actual elected ministers, the prime minister, and sort of put hamstrings, everything, all of their efforts.
So he was prevented from speaking early on. He shocked that off, I think rightly should have done it earlier. But part of the problem is messaging, and part of the problem is a bias media. The situation in Israel is that certainly the television media, there’s only one channel that isn’t firmly on the left using all the inflammatory bias terms that you just mentioned. That’s channel 14. And the left is doing everything he can to cancel it and to stop. It’s sort of it’s not as powerful, shall we say, as Fox News is in the United States, and its various right-wing competitors it’s much more flimsy. And there is a uniform messaging. I mean, Haltz is more extreme than say, Times of Israel or [inaudible] the main Mari the mainstream Israeli newspapers.
But even so, they have mobilized in a way along with the other establishment institutions in Israel to demonize the government, to demonize the very idea of judicial reform, to go into this gaslighting where they claim they’re defending democracy by actually opposing democracy. So as much as one can criticize the messaging of the government of how it’s gone about it, that’s true. But the odds were almost impossibly stacked against them in an immediate environment in which they were not allowed to get their message out, in which even when they did a decent job messaging, it was not heard. And that has been echoed in sort of the American coverage of this, where the liberal mainstream media and much of the Anglo Jewish media led by outlets like Times of Israel, which has adopted the same sort of inflammatory bias terms it’s much like the New York Times now in that way
And I don’t mean that as a compliment. So the messaging and the ability to hold this debate is minimized when the people on one side, indeed, the people that just won the election that had the majority of votes on their side, aren’t able to get their message out in a way where they can’t talk about how they’re mobilizing people. Where the left is allowed a complete monopoly on it, and it creates a certain momentum. I’m not surprised that the polls are running against the government right now in Israel, because the entire public square has been dominated by his opponents in a way that is almost unprecedented, even for an Israeli system, which has always been tilted to the left in terms of media and sort of establishment institutions. It’s gone into overdrive now because they see this as an existential question, not existential in terms of whether Israel will become an authoritarian system in their defending democracy.
But because Netanyahu’s victory in the last election and the chance of these minimal attempts at judicial reform, which only really chipped away at the edges of the power of the courts that this really meant that they were about to lose power fundamentally, that they would no longer have this veto over the voters. And it played into as I said before, this politics of contempt of the establishment for, as you say, the Israeli deplorables, which is based in real issues. I mean, people, secular Jews do resent the harum [? ] for not serving in the army, for not playing a role in the economy. There are real issues there. But to say that just because you don’t like them, you don’t like the way that sector is subsidized by the government and might be subsidized more, even though, of course, the institutions of the left were always subsidized by the government and they keep on saying, were propped up for decades. Arts institutions beloved of you know, the Tel Avivs, they’re subsidized by the government in a way, just like the Yeshivas. So but what we’re seeing in terms of messaging is one-sided because the side that controls these levers of power and of these institutions of communications understands that this is about their last chance to really hold onto power. It comes bound to politics, power, culture war, everything goes into that. And there really are no holds barred at this point as far as they’re concerned.
Lauri: Avi, I want to turn to you to talk about the implications of all this on Israel in various sectors. You and I had a brief email exchange, and I shared with you that I always thought that Israelis had a survival instinct that diaspora Jews didn’t. But I’m not so sure of that anymore. And you reassured me that yes, Israelis still have a survival instinct but I know that with my fellow conservative pro-Israel, American Jews we’re all very concerned and see this as very distressing. And it makes our lives that much more difficult to defend Israel when you see the chaos that’s going on. So, we read about military reservists refusing to serve, doctors threatening to lead, tech companies pulling out, it’s like Israelis have their own sort of BDS movement now aimed at harming the country.
And today I just read a report about business executives that are encouraging boycotting certain acts of Israeli society. So, given the neighborhood that Israel is living in it’s hard to understand the fighting among Israelis against each other. And can you discuss, what all of this is going to do to the IDFs preparedness, for instance, David Weinberg wrote a column claiming that the reservist threats are greatly exaggerated, but there’s also the potential economic implications given that Morgan Stanley downgraded Israel’s credit rating, and Moody’s and S&P are issuing reports and whatnot. So how concerned should we be about all of these things?
Avi: Well, let me actually start with what I didn’t want to start with which is the economics first. Morgan Stanley, others have downgraded Israel or issued cautions on the idea that Israel is threatened, there’s a threat to judicial independence in Israel. I think that Frankel, the former head of Israel Bank said as much, he said that it’s going to be a bad environment and invest in Israel, ’cause Israel’s going to lose judicial independence. And he added I don’t really know anything about that. I’m not a lawyer. I don’t understand these reforms. But anyway, that’s what they tell me. So let me tell you something any of the reforms that pass will return Israel partially to where it used to be before Barack when it had a strong and independent judiciary.
There’s not a single thing in any of the reforms that will threaten judicial independence. That’s not the issue. The issue is whether the judiciary will have unlimited power. So if you are thinking of investing in Israel, you actually have a buying opportunity here because the market is proceeding on the basis of a rumor that is not correct. Okay? Now, that’s just about the economy. Now, in general, what do I think of the results of this? There is a threat here. It’s just not necessarily where you think and let me explain myself most of the people are taken to the streets. Most of the people were fighting against judicial reform in favor of Juristocracy. They’re not just suffering from a misunderstanding about democracy and their centrality to governing Israel.
They’re also, they’re not anti-Zionist. They don’t, they believe they’re helping the state. And what that means is that all my friends from the army who are now screaming at me about judicial reform and that they know from reading the newspapers that I’m wrong in the things that I’ve been researching and teaching and doing for the last 35 years. When it comes down to it, if there is a military action, we’re all going to forget it, and we’re going to go show up, and we’re going to fight together because that’s what’s necessary. That’s not the problem. The real problem, the threat to Israel from all of this craziness in the anti-reform, pro-aristocracy movement is twofold. Number 1 is, we understand this in Israel, all you guys out there, you do not. Right?
The things that the political activists are saying to the Jewish world that Israel is on the tipping point of autocracy and dictatorship and the end of democracy and that the court system is about to be destroyed. They’re reaching other people besides Israelis. We understand it’s all political hyperbole, right? We understand it’s the demagoguery that characterizes Israeli politics, right? It will be forgotten 3 and 4 years from now. But it won’t be forgotten in the UN and in the Democratic Party, and among diaspora Jews, the damage that is being done is permanent and it’s not going to be fixed. And, the damage that’s being done by trying to talk down Israel is the Israeli economy. By trying to talk down to everybody else, the democratic system in Israel go bring charges against our soldiers, that is not things that we can fix afterwards.
And that’s threat number 1. Threat number 2 is even more serious. And that’s the reason there is a judicial reform movement. And that is the danger to Israel’s democratic institutions from the Juristocracy. Right now we’re having a debate, and we’re going to, I guess we’re going to talk about this as we go along, but we’re having a debate about whether the court is going to set aside laws of the judicial reform. It’s just going to say “They don’t count. They may have been duly passed by the Knesset according to every law, but we disregard them ’cause we think they’re not good.” Now, if that happens, if the court says that it is setting aside the rule of law, and it is setting aside democratic decision-making about laws and tells the public that roughly half the public that voted for this government, their voice does not count, that sets a very dangerous atmosphere. You can’t tell half the people that no matter what do what happens, their voice never counts. You can’t tell them they can have elections. If they lose, they lose. If they win, they lose also. And the destruction of Israel’s democratic institutions by a runaway court is also, it’s fixable, but we’re getting to the last minute before it can be fixed before something really terrible happens. And that’s where the real threat is.
Lauri: Avi, I’m going to ask Jonathan a question, then I’m going to come back to you to elaborate on this upcoming Supreme Court decision on the reasonableness decision or law. But Jonathan, while I had raised the issue with Israel’s military, I just want to ask you, I mean, isn’t it really a coup d’état when the Israeli security organizations are used as levers of political pressure on the government, which is actually the true threat to Israeli democracy? And Avi raised important points here about what is really a true threat to Israel’s democracy. There was a letter signed by 50 generals who were heroes of Israel and top commanders who describe what’s going on as crossing all red lines of acceptable behavior and is sapping the resilience of Israel and of the integrity of the IDF as a true people’s army. In this context, what happens if the protestors actually get their way? How does democracy by protests work, and how can any future right-wing government, ever again govern unless they attempt policies that the left doesn’t, like, wouldn’t capitulating set a dangerous precedent?
Jonathan: Well, you’re exactly right. It is a very dangerous precedent, and not just for future right-wing governments, but for future left-wing governments as well because there are plenty of people in the military who are not sympathetic to the left, increasingly. And up until recently the lament from sort of the secular establishment was that the higher ranks of the IDF were increasingly filled with religious Zionists that these people were replacing the old kibbutznik elites who filled all of the elite commando Air Force positions. And that the army was becoming more right-wing and more religious, which scared them. Obviously and indeed, a lot of the people who have been signing the anti-judicial reform petitions from the point of the Army are actually retired officers. And so people were not currently involved.
But yes, of course, there was an article in Haaretz, which actually described what was going on as a military coup, although they thought it was a good military coup, they thought it was right. That the military had to step in to protect the rule of the left, because otherwise then it’s not democratic. It’s sort of like the old Tammany Hall in New York expression if they don’t win, it ain’t democratic. So clearly it’s an attempt by people within the military to exercise a veto over the civilian power that is incompatible with democracy. And it goes further. Listen when Gaza, the Gaza settlements were evacuated in 2005 religious Zionists and sort of right-wing officers who didn’t, and soldiers who didn’t agree with this still showed up. They still carried out their orders. It still happened. If there are future governments that are left-wing in Israel, and nothing is set in everything as I was taught when I studied history at Columbia University a long time ago, everything in history is evitable. Is not inevitable That the right is going to win every election in the future any more than it would be for the other side to win every one.
And what they have now set in, they’ve set a precedent or about to set a precedent in which the army can intervene against the politics a decision of the left. If that was the way it went. That’s unacceptable, and that’s why that is a red line that shouldn’t be crossed in any democracy. The civilian power must always rule. Now politics has always been involved in the Israeli military. If you know your Israeli history, you know that the Army has always been very deeply involved in politics. It was populated by members of the Mapai, the old labor Zionists establishment. Gradually that changed, but it is something that should not be allowed. It is something we would not countenance in the United States for a moment, no matter the issue.
That sort of this 7 days in May they can bring up an old movie novel precedent, maybe people haven’t seen it on TCM, but this is the kind of coup mentality regardless of the gaslighting, misleading terms used by the press, that creates a real danger for the country. Now, I agree with Avi, most of these people who are going, who are protesting, if there is a real, there is another war. If Hezbollah starts a war, there’s another exchange with Gaza. People will show up. The communitarian spirit in Israel is still intact. But I also, I do agree with him that the propaganda that is being spewed in the United States by many people claim to be supporters of Israel.
Whether it’s people like Bret Stephens or Max Boot just the other day in the Washington Post who said that Israel’s becoming a disgusting country. I can’t support it anymore. This will have a real effect on the alliance with the United States at a time when it is under threat from the rise of the intersectional left within the Democratic Party. There are real tangible security consequences to it that go beyond whether people are actually going to show up to fight in Israel. And that’s what those who are sort of lighting the match to this fire should be considering.
Lauri: I just want to add that Max Boot also said that about America when Trump won. So I don’t how many people [crosstalk]
Jonathan: He’s an angry guy.
Lauri: So Avi, you raised an important point, and I’m going to time is ticking by here, so I want to jump ahead to this. ’cause I think this is a really important question to ask you. The Israeli Supreme Court, and that’s all 15 justices are going to hear petitions next month, seeking to overturn the new reasonableness law that the Knesset passed. It’s a farce, in my view, is the court will be determining its own jurisdiction without a constitution to guide it. And while it has a clear conflict of interest, there are also unelected judges possibly overturning a law passed by elected policymakers if that occurs. Carolyn Glick quoted you I state quote, “A parliament asserts its authority by passing laws by annulling, the Knesset’s power to enact laws. The court is destroying the last vestiges of Israel’s democratic institutions”. First, what are the chances the court is going to actually uphold this, given the nature of the court? And second, how can the country withstand a decision to overturn this law? And how can it also withstand the protests that will ensue with either decision? It makes it seems to me that this is a lose-lose scenario, which actually proves the need for judicial reform. But the fear is that whatever decision is reached Civil War could erupt. Is that a realistic fear?
Avi: Yes. But let here, let me just explain something. The court is not being asked to decide on its own jurisdiction. There is a law. The court is being asked whether it’s going to respect the law that just got passed, and just convening the hearing with 15 judges. Is the court telling us, no, it will not, right? The court is telling us it already views this as an open question, right? Whether the law is to be regarded as binding or not, is not up to the Knesset. It’s not up to the parliament to pass the law and make it a law. Now, it’s up to the court to pass its superior judgment, not on the basis of law, but on the basis of decisions about whether it conforms with the principles of Israel as the court understands it, or whether the Knesset was acting out of proper morals or motives as the court understands it, or whether the Knesset conducted a proper debate as the court understands it, those are the things that the court is going to be evaluating on that basis.
It’ll decide either we’re going to let it stand as law, or we’re not going to let it stand as law. Now the truth is, we’ve already passed this point where the court has already said that it is beyond the law. The law is not something that will restrict the power of the court. And we saw this about 3 years ago when there was one of these indecisive elections in which the left won 61 votes and the right won 59. So with 59 Itan [?] could not put together a coalition on the right with 61, the left couldn’t put together a coalition either because it would require including members of Arab parties that other members of the left were not going to go along with. And so there were the left had a parliamentary majority without the ability to put together a government.
They came up with a plan Yair Lipid came up with a plan of postponing elections, right, preventing the automatic fall of the parliament, postponing elections. And but putting in, in order to do that, they need to put in a new speaker. The speaker was a holdover from the Netanyahu government. Without the speaker, they couldn’t put forward their legislative proposal to postpone the elections. And so they went to court and asked the court to order new elections for a speaker. Now, the rules of the Knesset are very clear. You don’t have elections for a Knesset speaker until the new government is presented. And so the speaker, Yuli Edelstein of the Likud Party said, “I’ll hold the elections when the rules require me to do so.” So the court said, “Yeah, we know that’s what the rules say, but nonetheless, you have to hold them now.
And so Edelstein resigned rather than follow that order. The court reconvened, it fired him, appointed a temporary speaker, and ordered a new vote 2 days later on a Friday a vote for Knesset speaker. And at that point, Gunson [inaudible] cooked up a deal to stabilize the situation. They came up with a unity government and set aside the machinations of the court. But the court has already done this. I should be more precise. The Hayut Court has already done this, right? Where Hayut has a particular personality and judging cases like this, which is where she sees a brick wall in front, she speeds up. And so there is a real danger that the court will not only having expressed the opinion already by convening this 15-judge panel to say that it disregards the law, then not only they’ll say the law doesn’t count, but they will declare that the law is unconstitutional under this invisible constitution that only the court and its judges can see.
Now, what happens at that point? Well, what happens at that point is it’s not a question of the Haredim. The Haredim are a minority in Israeli society, and they’re fairly autonomous and independent and a minority that’s not interested in conflict. They’re not the problem. The problem is the rest of the half of the country, primarily Jews of Mena origin Middle Eastern, north African Jews, religious Jews that serve in the army. Now here, you have these groups that for decades have been trying to break through the glass ceiling. And they try to do this by playing according to the rules, right? The religious Jews volunteer for the most dangerous army service, but then they get up to a certain level of officer hood, and they can never be promoted, right?
They go into academia. And unless they whiten themselves, they can’t go any further. They try to strengthen the courts. This is a big strategy, whether the idea that the rule of law will help them. But then the court turned around and rejected the rule of law and brought in the prejudices of the social and ethnic class to which they belong. And the last thing that’s available to them is democracy is voting for their people and getting laws passed. Now, if the court throws that away too, and it looks like that’s where we are that makes a group, a large segment of society absolutely desperate. Every opportunity that they see in front of them to follow the rules does not help them. And it is basically instructing them to not follow the rules. That is a very dangerous thing to do in society, right? I fear that we are there, and I don’t know what will happen next.
Lauri: It’s frightening to watch as an outsider, but it’s crazy because in every headline and article that I read, you see Bibi’s going to have to follow what the court decides with regard to this reasonableness law passed by the Knesset, as opposed to the court having to respect the laws passed by the Knesset. And it seems, as I said, it’s like a lose-lose situation. We don’t have a lot of time, but Jonathan, I want to ask you a very, what I think is a very important question that I’m sure our listeners want to hear. Do you believe, or how do you believe both Israel’s allies, and in particular, its Abraham Accord’s allies, which in Saudi Arabia’s now, discussions about bringing them in, and its enemies, including all the Iranian proxies like Palestinian, Islamic Jihad, Hamas, and Hezbollah.
How do they all perceive this unrest in Israel? I’ve seen cause for the terrorist organizations to unite now that Israel is dealing with so much domestic unrest, do you think Israel’s more vulnerable to attack? And do you also think it’s more vulnerable to international condemnation, which will add more pressure for compromises with the Palestinians? The Biden administration is putting a tremendous amount of pressure on Israel to make concessions while it simultaneously berates Israel for the judicial reform proposal. So is there a role that America’s playing in this? And I know we don’t have a lot of time left, but that’s a loaded question if you could touch on that.
Jonathan: Yeah. And that’s a very complex set of circumstances. I would, I so trying to take it in order. I think when we’re talking about the Gulf States, United Emirates, Saudi Arabia, I don’t think they really care about Israel’s domestic politics. They’ll do business with anybody who’s running Israel. They don’t care which side wins Israeli elections. They don’t care whether the Supreme Court of the Knesset is the supreme power in Israel. They’re going to continue. They have embraced Israel to the extent that they have because it’s in their interest to do so. Not because they’re Zionists, not because they love a particular vision of Israeli democracy. Let’s bring up that the terrorists, similarly Hamas and Hezbollah, their Iranian patrons, hate Israel, they hate the Jews. They really make no distinctions between Ehud Barack and Benjamin Netanyahu.
In their minds, it’s all the same thing. They always do. I think we should always assume that they are always doing their worst. That they are always seeking to undermine Israel, always looking to attack any weaknesses. To the extent that this is showing some weakness, they will try to exploit it. But the power differential there, thank God, is still so great that I don’t believe that Hezbollah would risk a war simply because people are demonstrating in Tel Aviv, they know very well that the consequences for Lebanon for them are enormous and generally negative. So again, I don’t want to be complacent about threats because these threats are real. The need to expand the circle of peace is real. But that’s not the problem here. The problem here is the delegitimization of Zionism in Israel. That’s the fire that the anti-judicial reform, the anti-Bibi resistance has lit.
And this has given a real strength. This is a gift to the intersectional anti-Zionist left in the United States and in the international community. The idea that Israel was a democracy was something that was a shield that Israel had. It was real, it was obviously dismissed by people who hate Israel, anti-Zionists, they didn’t care. But when you have people who claim to be defenders of Israel, claim to love Israel, like the Jewish, the establishment of the organized Jewish world, the Jewish federations, the Anti-Defamation League, all the American Jewish Committee, if they’re throwing shade on Israeli democracy because they are taking side with the leftist establishment that undermines their case to defend Israel. When pundits, again, people like Bret Stephens who have tremendous prestige within the Jewish community and American politics, or Max Boob who has less prestige for good reason, all of them, they are undermining the case for Israel.
If Israel is only to be defended when certain people run it. When the majority of Israelis are kept out of power that this politics of contempt for Jews, for the undesirable, for the deplorable Jews. This just plays into the hands of those who see Israel as a colonial implant, an expression of white privilege, a racist oppressive state. This makes the arguments for dissolving the American Alliance with Israel for attacking Israel all the more strong. And that is the real danger here in terms of outside forces. That’s who they are strengthening. They’re not strengthening democracy. They’re not strengthening Israel. They’re undermining the case for Israel in a way that gives real material aid and effort to those who hate it.
Lauri: Hey, there’s one question that actually gets to your point, Jonathan, and we’re not going to get to the questions, unfortunately. I’m sorry I didn’t get to all of mine either. But somebody asked about supporting the FIDF, they were confused about conflicted about whether to continue to support and donate to the FIDF. And I just want to make the point that yes, you should absolutely continue to donate to the FIDF. The IDF is going to protect Israel, notwithstanding, what’s going on here. So to that person, I just had to respond to that question and we’re running over time. I can’t thank you both enough, Avi, Jonathan, we could have talked for another hour for sure, about all of these issues. And I thank everybody who listened in. I think this is an important Webinar. We’ll send around the link. Please share it far and wide. And thank you all for taking the time to join us today. Again, Avi, Jonathan, thank you a million.
Jonathan: Thank you to Emmett and its members and supporters.
Lauri: And JNS.
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