Ask Haviv Anything - Episode 7 - Judicial Reform: Is tribalism eating Israeli democracy alive?

Episode Date: March 28, 2025

What if everybody is right on judicial reform? Israel's highest court is immensely and unreasonably powerful. But if it is weakened, what other checks stand in the way of the tyranny of the majority, that great Achilles' heel of democracy since the dawn of Western civilization?This question is especially urgent for Israel, whose politics are more Middle Eastern than Western, more tribal than ideological.It's not unreasonable to weaken the court, but it would be disastrous to do so without broad trust and buy-in, and without addressing the desperate lack of other checks and balances in the country's constitutional order.It's time for a more serious left-wing critique and a more responsible right-wing reform. Anything less will only cause harm.Thank you to Jason and Lauriel Klinghoffer for sponsoring this episode.Please join me on Patreon to support this project: ⁠ www.patreon.com/AskHavivAnything⁠ If you would like to sponsor an episode, please email us at ⁠[e-mail]⁠.A podcast by Haviv Rettig Gur

Hello, welcome to episode seven of Ask Aviv Anything. Thank you to Jason and L'Oreal Klinghofer for sponsoring this episode. This was going to be a quick extra bonus episode in which we just tell you something about the judicial reform that just passed. It's major, it's big, it happened. Two years of back and forth, of fighting of street demonstrations, of protests, and the key signature part of the reform, which has many, many moving parts. But the signature main part was the changes to the judicial law. selection committee to how Supreme Court justices are appointed. That passed into law after a 17-hour filibuster early this morning on Thursday morning. So what does it mean? What just happened? Why are some

people terrified for Israeli democracy and some people thrilled that Israel finally has a democracy? The rhetoric is a little over the top on all sides, but nobody here is stupid. Everybody here has a deep argument. And to really understand it, we have to dig in. And so, So this kind of balloon from a simple comment to a deep dive into the Israeli judiciary, its history, the sociology that surrounds this debate, which is more important, I think, than the legal actual questions, which are not the fundamental things being debated in the streets. Let's get into it. First of all, thank you to J. This is, I have to mention a question that a lot of paid subscribers on the Patreon for this podcast have been asking for a while. And I've tried to stick to history and avoid politics. Politics keeps overpowering us.

That's fine. That's great. Deep dives into politics are inevitably also deep dives into history. And so we're going to tackle it now. The political system has just given us a wonderful opportunity. Things are both not as bad as they look and also much worse. And the left is correct in its criticism. And so is the right.

And we're going to see that. I'm not going to just, this is. isn't both sidesism. There's a really deep, rich debate underway and a very shallow, angry, populist screaming match layered on top of that rich debate. So we're going to dive beneath that screaming match to the deep debate. And we're going to see interesting things. And nobody gets off the hook here. And I don't think our political class is doing this right. But we're going to see what it is they would need, I think, to do it right. Everything here that I'm going to suggest is, of course my view, my analysis, my interpretation, but I hope to give you enough things to

Google or type into chat GPT or read a book about that it will empower you to disagree with me as well, but to disagree with me richly, not to disagree just through that screaming match. So enough talking about talking. Let's get into it. As I said, 6 a.m. Israel time after a 17-hour filibuster, the committee to appoint judges was changed. It was the signature reform of the judicial reform of the larger judicial reform proposed in January 2023 by Yereve Levine that set in motion the massive protests and political divisiveness of the last two years. In a sense, everything changed. The court, the high court, just lost its veto on its own appointments. I'll say just terminology wise, Supreme Court and High Court of Justice are the same judges,

but sitting in a different kind of appeal institution. So when I say high court, when I say Supreme Court, they're interchangeable. It's the same. It's the highest court of the land, but in two different ways of judging. That's very different, for example, from Britain where the Supreme Court is higher than what is called the High Court. So we're talking about the same institution. The Supreme Court of Israel lost its veto on the judicial selection committee of appointments to itself. It had three members on a nine-member committee, and by law you needed seven votes to put a justice on the Supreme Court. And what that means is that those three members, if they voted together, could deny any appointment of any candidate proposed by the coalition, by the Knesset, by the Bar Association. And those

three judges of the Supreme Court have never, in the history of that committee, voted apart. They've never split their vote. And so functionally, the Israeli Supreme Court had a veto on appointments to itself. That's no longer true. The new reform lowers the bar for appointment to the Supreme Court to five votes on the nine member committee. And so the court no longer has that veto. In that sense, absolutely everything just changed. In another sense, nothing changed. For one thing, because the change only goes into effect after the next election. So it's now part of what the next election will be about. There is a referendum on it built into it, which is a decent thing to do for something so dramatic. Let's get into it. I want to start with a principle, a general rule.

There are a lot of exceptions to it, but it's still a general rule. In the democratic world, there is a negative correlation between the power a court possesses, a high court, the highest court of the land possesses, and the political influence over appointments to that court. So, for example, in the United States, you have a fairly powerful Supreme Court. It can make profound decisions on gay marriage being universal across America, rather than, than per state, which I believe happened in 2014. It can make profound decisions on campaign finance. It can fundamentally change the political order of America through its decisions. And the political powers appointed. Now, the founding fathers were very worried about a court

that's unelected and a court that would have these kinds of powers. It would take for itself over time these kinds of powers, beginning with Marbury v. Madison. But they kind of understood that this would be a problem going forward. And so they made, sure that politicians appointed the court. However, not one politician, not a single body of political power, but divided. So a president nominates, and a Senate, which is elected on a different schedule and in a different way of subdividing the population, had to confirm. Two centers of political power had to agree to appoint a Supreme Court justice. And over time, the Supreme Court justice would be a kind of echo, a kind of check on the political system of a generation

earlier, right, because they're lifetime appointments. And so in all these different complicated ways, the system was built so that a lot of political influences involved. In the United Kingdom, in Britain, the Supreme Court is much weaker. It does not take these dramatic steps. It doesn't have these massive powers to fundamentally change the order of things. And the appointment process is much more independent. There's a selection committee that is formed for each vacancy on the court, and it's chaired by the court's chief justice. And the candidate for the Supreme Court that that committee recommends to the justice minister, it's the Lord Chancellor, I'm just going to use Israeli terminology, forgive me, because it's much simpler. The candidate that that committee recommends

to the justice minister can be rejected once, but not twice. The second candidate, the justice minister does not have the power to reject. They can ask for a reconsideration. And the committee, again, just once they can ask for a reconsideration, and the committee can turn that down. And then the name of the person is accepted. It's sent to the prime minister who advises the king, and the king appoints the judge. That's, of course, a formality. Britain famously is a liberal democracy pretending to be a theocratic dictatorship. A committee appoints the justices, and the committee is chaired by the chief justice. And the most important check the political system has is the rejection of the first candidate, and that's it. And so you have this,

it's a very clear system in which the more powerful the court, the more political checks there are on its power, the less powerful court has more independence in terms of appointing people to itself or vetoing appointments to itself. Israel is a total outlier to that formula. It has an astonishingly powerful court with massive influence, almost very little political influence over appointments to itself in the sense of just a full-on veto of appointments to itself, massive influence of appointments to itself, but also powers that not even the American Supreme Court has, which is a fairly powerful court. How does it work in Israel? There are nine members of the judicial selection committee.

Three of them are justices of the Supreme Court. Two represent the executive branch, the cabinet, their cabinet ministers. Two, represent the Knesset. Traditionally, one from the opposition, one from the coalition. It hasn't always been so. The new reform actually gives the opposition seat to the opposition by law. So it will no longer be able to be taken away from the opposition that seat on the judicial selection committee. That is, again, a compromise to push the bill forward. And there are the last, those are seven total, two cabinet, two Knesset, three justices. And then two members of the Israel Bar Association representing. the legal profession. By law, as I said, you need five members of the committee to appoint a judge in a lower court, and then you need seven to appoint a judge to the top court. And because there are three justices on the committee of nine, you can't get seven votes without a justice. And the justices have never, ever, not for decades, split their vote. So functionally, the Supreme Court has a veto over their appointments. It's more control over their appointments, even than the British system. And at the same time,

on the other side of that ledger, the Israeli Supreme Court, both as a Supreme Court, which is the highest appeals court, you can appeal from the district court, but also it sits as the High Court of Justice, or as the Hebrew acronym goes, Bagatz. It's a court of equity. It's a court of direct appeal. Any citizen, any non-citizen, anyone anywhere on earth affected by any branch of the state doing anything can go directly to the Israeli Supreme Court. almost no limits on standing on who can actually appeal some problem or complaint. There is an entire cottage industry of NGOs that appeal to the Supreme Court in other people's names. Now, in the United States, if the ACLU wants to go to the Supreme Court on some issue,

it has to have a victim. The actual lawsuit has to be brought in the name of a victim. A victim of some problem has to actually come forward and be the actual plaintiff, the actual person bringing the lawsuit. In Israel, they don't. don't need a victim. An NGO can feel strong feelings about an issue and come to the court and demand redress, even if the issue doesn't affect the NGO or anyone the NGO represents. It could affect just some random people over there. But if it runs afoul of the sense of justice of that NGO, the NGO can file an appeal. The Israeli Supreme Court's High Court of Justice says 15 justices hear thousands of such appeals every year. It is one of the busiest high courts in the

world. There's nothing quite like it in the democratic world. One of the first great expansions, one of the early great expansions of the Israeli Supreme Court's massive power was in the Deripin-chasi case about 30 years ago, in which the court didn't rule against the right. It didn't rule against a right-wing government, but against a left-wing government. And its expansion of its own understanding of its power, we're still living with today. It had to do with the powers of the Attorney General. It had to do with reasonableness. And it almost toppled the peace process. The court has expanded against the left and against the right. And this is a process that needs to be well understood. There used to be a lot of complaints on the left about the Israeli High Court's massive powers.

In the Deri-Pinchase case, you had a coalition that Izzhach Rabin was trying to hold together as he advanced the Oslo peace process, which was very controversial, of course, in the early years. It was a peace process with Yasser Arafad who had murdered Israelis and hijacked airplanes and committed to the destruction of Israel, but could we reach peace? We don't know. Here we're experimenting. And the Shas political party, the ultra-Orthodox Sephardi political party, was part of Rabin's coalition. And then the police opened an investigation into corruption allegations against Aliyadhdi and the Attorney General of Rabin's government said that a person being investigated is not allowed to serve in the cabinet. Now, the dry letter of the law said that until an indictment

was filed, he was allowed to serve in the cabinet, and Derry, in fact, publicized a letter to Rabin in which he committed that if an indictment were filed, he would actually resign. And Rabin made sure that letter was known to the public and said he would stick around, but, right, because if Derry is forced to resign from the cabinet, Schausse loses its main reason for staying in the coalition and would leave his government, then the Oslo process might fail. And so a prime minister juggling this incredibly complex and for him really central political question and obeying the law to the letter was being told by his attorney general, you have to fire dairy just because there's an investigation. And he went to the high court. And the high court ruled multiple things.

One, the attorney general doesn't have to defend the government's position if he disagrees with it. In Hebrew, the term attorney general, the name for the position is legal advisor of the government. Well, if he doesn't have to defend the government's position, who does? Who actually brings Robin's own case? And the court allowed Robin to bring his case in writing, but not even to argue against his own attorney general, making the opposite of his own argument in the court as a representative of the government. This was something that Justice Sajharon Barack, the greatest expander of Israeli high court power, ruled in that case. almost the idea that the Israeli Attorney General is infallible, that if the Israeli Attorney General says something is illegal, that's not a legal advice that you can then check in court. That's law, just their opinion. That was new at the time. And it was implemented for the very first time against a left-wing government. And it genuinely threatened the signature policy of the left in that decade of Israeli politics. And the simple letter of the law said otherwise. In the end, the court would rule with the Attorney General, and in the end, Rabin's government, you know, was seriously threatened.

So the Derri-Pi-Kasie case is a great place to start this discussion because it has now become so utterly left-right politicized the Supreme Court's power that nobody remembers that it didn't use to be a left-right question. There is actually in Israel an immensely powerful high court, probably the most powerful in the democratic world, almost no limits to standing. almost no limits to something called justiciability, which is, can the issue being brought before the court be dealt within legal terms? The bottom line is the Israeli high court, if it isn't the most powerful court in the democratic world, it's the most powerful one with almost no political influence over appointments. It's a total outlier. It invented constitutional principles of breakneck speed over the years. It's unhealthy and unsurious. Harun Barak would strike down legislation.

because it contradicted his interpretation of the basic laws. Basic laws are these laws passed by regular votes in the Knesset to kind of be constitutional, but they're not constitutional in the sense that they're not protected specially and made hard to change. So the Knesset in the last six years or so has changed the basic laws something like two dozen times. They're very easy to change, but they're also the rules of the game. So he has ruled that they're useful as the higher law against which other laws can be measured. Well, last year, the Supreme Court struck down an amendment to a basic law because it was unconstitutional. So our basic law is a constitution or not.

The Supreme Court itself has been deeply confusing on this question and in ways that continue to expand its power. Folks, we don't have a clear constitutional framing and understanding of what the court's role is. And it has grown over the years into this immense and profoundly independent and enormous, an enormously powerful institution. And by doing so, it actually drove irresponsibility in the political system. I can't tell you how many times ridiculous things have been proposed in the Knesset. Ridiculous things have passed in the Knesset. And members of Knesset would tell political reporters like me, don't worry, it won't survive

baguats. Well, if it won't survive baguats, why did you pass it? And don't worry, meaning you actually don't think it should have passed. It's a shot across the bow of a culture war. it's not good legislation. Legislation was cheapened by the knowledge that there is this paternalistic kind of institution that will prevent lack of wisdom from ever becoming law. It's unhealthily powerful.

And to a lot of Israelis, it feels like a patronizing policy-setting body meant to stymie their own beliefs and desires and needs. The right has a point. And the left has a point, or the center left has a point. And it is a profound point. And here's why. Israel's electoral system might be one of the simplest in the democratic world. It has a single constituency party list system. In other words, the entire nation is a single constituency. We don't have direct election of MPs. We have one electoral district. And you don't vote for an MP, an individual MP. You vote for a party list.

And so there's no direct election of MPs, no meaningful primaries. I mean, most political parties have no primaries officially. In Yashati, there's no primaries in Israel-Betendu, the, you know, Russian majority party, there are no primaries. In Ben-Gunz's party, there are no primaries. In the ultra-Orthodox parties, there are no primaries. There are different negotiations from different ultra-Orthodox factions, but there are no primaries. In Likud, there are primaries. In some pieces of the left, there are of the deep left, there are primaries. But even there, in Likud, for example, Netanyo's influence is so great. And the party has been so purged over the time that he has ruled it over the years that functionally his word is law and what he needs he gets. And so

Likud is the best of them. Everybody else is worse. But even Likud's primaries are not really a check on the power of the party leadership. And so functionally, what do we have in Israel? We have a voter who only votes for a party list, not an individual MP. Because we're a parliamentary system like, you know, Austria or Holland or Britain, we vote for a parliament. Parliament votes from within itself for an executive, for a cabinet, for a government. But in our case, unlike in Australia or Britain or Latvia, the heads of the parties who form the executive branch, the cabinet, have literally personally appointed most of the parliamentary majority. That was a big thing to say just now. Netanyahu and Bengville and Derry and the people in power in the executive branch,

who run the executive branch, had immense power, usually absolute power, to decide the individual personal appointments to the very list that back in the Knesset forms the parliamentary majority. The executive in Israel functionally appoints the parliamentary majority. In other words, in Australia, because you have direct regional election of an MP, the MP who is popular in his district could still be a check on the prime minister's power, on the executive power, because they can get reelected on their own. Not so in Israel. In Israel, the executive put that person in the parliament functionally. And so we don't have other checks. There simply aren't any.

And so the Supreme Court grew more and more powerful. And there wasn't profound opposition. There were a lot of legal cases and a lot of left-wing law experts and right-wing legal experts who were worried about this expansion of Supreme Court power. There were debates for decades. But there wasn't a popular opposition to it because it's not clear that there are any other checks in the system to just majority rule, to tyranny of the majority, which is the great problem of democracy since the days of Aristotle. the entire American electoral system is built to offset the majority, to prevent the tyranny of the majority. That's why the House and the Senate and the president are elected on different schedules to make sure that if a majority forms in one election cycle, it has to be sustained for the next and the next take over the Senate, right? You can't just sweep all the institutions, all the veto-holding institutions all at once.

Tyranny of the majority is the heart of the American system, avoiding that. Israel has no check on that except the court. And there's another reason the court got massively powerful in Israel that I think is useful to understand. Culturally, even now, it's the most trusted body in government, except for the military in wartime. It's probably also the most serious, the most thoughtful, the most professional in a circus of bad decisions and populism that has kind of defined Israeli politics over the past 20 years, let's say. it's not an accident that the country with the most powerful high court is also the one with the highest number of lawyers per capita. There's something deep and cultural here and deeply Jewish, okay? Jews love law. Law is intrinsic to their culture, to their religion, to their way of life. Having social rules, having law is associated at the instinctive level in Jewish culture, all Jewish culture.

Mizorathi, ancient, modern, all Jewish cultures associate law with holiness, with life, with social strength and solidarity, with sanctity. And so some of that runaway sort of self-valuation, self-aggrandizement of the Israeli judiciary that thinks of itself as the most important, most wise, right, the child with the finger in the dike, holding back the flood. institution in Israeli government is a projection of this ancient and deep-seated sense of what law is in a society. It's a projection of the idea of the rabbi onto present-day Jewish society. It's not crazy that this specific problem of judicial power and judicial reform would become

the fundamental culture war of the world's only majority Jewish society. It's not crazy that so many Israelis would be willing to tolerate an unelected court of such immense power as a check on political power, that they would trust that court. It feels instinctively the way that the prophets of the Bible are described in the Bible or when you read about them in school as a check on the kings, as an institution that called the kings to task in the olden days. And when there is no other check because we have probably the most unitary executive and legislative you can have, that makes even more sense. So the left has a point about the importance of the court, about what the court does, about why culturally so many Israelis don't think the court is crazy and evil and wild,

even though you can map it out comparatively to other high courts and kind of see how dramatically it really is an outlier. It goes deeper. that, however. There's a reason Israelis never tried to fundamentally change the party list system. The problem we have is there are no other checks. There's no Second House of Parliament. We have a fairly small parliament. We don't directly elect the MPs. It's not clear what those other checks on executive power would be. And yet we've never really tried to change that, except for a 10-year experiment in the 90s of a direct election of prime minister, but alongside a national party list system. Israelis just had two ballots at the ballot box, one for prime minister directly and one for the party.

It was believed to be a disaster by everybody, and it was canceled after 10 years. Other than that, there hasn't really been any serious attempt to change the party list system. And that's also something that makes sense if you understand Israeli culture. Nationwide party lists make sense in a country as tribal as Israel. Israel is a society made up of ethnic and religious tribes. The subcultures are fundamental to how Israelis understand themselves, whether you're Arab or Jewish, whether you're secular or religion or religious within these broad categories are many, many subcategories. The Bedouin conservative Muslims of the Negev where there's still polygamy, the Sephardi-Haredi community, the Ashkenazi-Haredi community that doesn't live much with the Sephardi-Haredi community. The Tel Avivis secularist Jews, the Haifa progressive slash socialist Arab, very different education, very different life, very different culture from the Bedouin of the South.

All these cultural, religious, and ethnic subgroups I just named and many, many others as well, have political parties. Those are what the parties represent. Kaddash represents the progressive Arab educated elite, but not just elites, in other words, a great many Arab Israelis, but also especially the base would be in the more educated urban, progressive Arab community, as opposed to Ra'am, which represents the more conservative Muslim end of the spectrum, and part of its major part of its base are the Bedouin, as opposed to Yashite, which is very much secularist Tel Aviv, as opposed to Shas, which represents a far as a far as Fari-Haredi as opposed to united toward Judaism, which is an agglomeration of different Ashkenazi factions, but they're Ashkenazi ultra-Orthodox. That is what that party is. If you were to suggest that the Sephardi-Orthodox Party and the Ashkenazi ultra-Orthodox Party who agree on just about every single policy question that ever comes up in the Knesset were to unite, everyone would laugh you out of the room because their fundamental purpose is not policy. There are very few policy debates in Israeli elections. I would say there are none. It's about tribe. It's about representing that subgroup to the Knesset. Our subgroups live apart. Our subgroups, their entire entire, entire, you know, deeply secular areas of Tel Aviv. The gay pride parade of Tel Aviv is the biggest festival of the year. Everyone loves it. It's not really a gay pride parade. It's just a festival everyone's in love with. There's a fight for getting a seated, cafes for that morning because it's so much fun to sit at a cafe and watch it go by that those seats are taken very quickly and they're very hard to get so people actually camp out in the mornings. It's not resisting anything in Tel Aviv. The Jerusalem Gay Pride Parade is much

smaller, much more political, much more tense. It's in a very conservative city, religiously Jewish, religiously Muslim. It's making a point in a way that Tel Aviv parade long ago stopped actually making a point because everybody already agrees with the point. Two cultures that live very, very separately in very different places. We have different school systems. Secular Jewish kids learn in a secular Jewish state school system. Modern religious Jewish kids learn in a separate religious Zionist Jewish school system and Haredi kids learn in a separate

Haredi Jewish school system in fact multiple separate Sharedi Jewish school systems for the different factions it's not different among Arabs Christian schools are separate from Muslim schools what's really important to understand when you look at this from the West is that

this is something that the minorities desperately want if you were to come to the community in Israel, and you were to say to them, our kids grow up separately, let's integrate them, let's have a shared school. The majority of that Arab community and the leadership of that Arab community will call you a racist for trying to erase their separate and distinct culture and identity. It is considered a pro-Arab thing to do to enable and empower a community to have their own school system and raise their kids and their own culture and narrative in history. And in fact,

in Israel, you can be any group of parents that is sufficiently large, I don't know the number, but somewhere in the low hundreds, maybe a hundred households, something like that, can petition the education ministry to found their own school. So, for example, one of my brothers went to a high school in southern Jerusalem that is a Anglophone conservative Jewish school and put together by Anglophone conservative Jewish parents. And so anyone can do that. And so anyone can do that. And you have some integrated schools that's their entire point. They're integrated kindergartens, integrated high schools, integrated towns that make a point, you know, small villages that make a point of everything being both Jewish and Arab at the same time.

And they're very small. And in a system where anyone can choose it, nobody chooses it. So we live in these subgroups in Israeli society. It's a system that everybody wants because this sense that this tribe that I live in is my most fundamental identity is just how people construct their identities in this country, in this place. The same is true in politics. In other words, cultural, religious, ethnic subgroups vote their party. That is what the parties are for. What Israelis think they're doing at the ballot box, the reason that the individual on the list isn't prioritized, that nobody really needs to elect the individual

to the parliament, but only the list itself, is that the list represents the tribe. What we Ask Israelis when we go to an electionist. Tell us what tribe you belong to. And based on the size of that tribe, you're going to get representation in Parliament. And in Parliament, we mediate the shared life of the different tribes. Folks, this was the real check all along. I told you there are no checks in the system except that overpowerful court. Well, there was a check.

And now you can see it. The check was the tribe. This was the mechanism that always swung into action to protect minorities, for example. No tribe was ever a majority. The Jews are too divided to ever have formed a single try, except in wartime, where they unify. But they're divided on fundamental things. It is easier for Shas to work with Rahm, the conservative Muslim party, than it is to work with Yashatid. Because Shas and Rahm, Shas in the Bedouin of the South, Sephardi-Hahidi Jews and the Bedouin

conservative Muslims of the South share child subsidy needs, share the, you. desire for culturally conservative religious courts that are holdovers from the Ottoman system, but sustained by these subgroups wanting them. And they share so many priorities that they, in fact, work together much, much more than any of them will admit publicly. It's not just that. They also protect each other. Lycud multiple times has tried to pass in the Knesset and Mouet-Zin law to lower the volume of the Muslim call to prayer. In many areas that are shared by Jews and Muslims, it was about 5 a.m. noise coming out of loudspeakers in shared towns and people waking up to them who are not Muslim and don't want a public call to prayer that is very loud. And so there's this public

question. And it's a public question in which right-wing Israeli Jewish parties have an opinion, want to pass legislation, and minorities, Muslim parties, are very worried and don't want this to pass. Well, repeatedly in the last 15 or so years or 20, years, these bills have been stymied not by Arab parties who were not in the coalition, didn't have the votes to prevent the bills from passing, but by ultra-Orthodox parties. And when one ultra-Orthodox M.K. was once interviewed on television and I watched this interview and remembered it forever. It's seared in my brain. It was one of these fascinating artifacts that unpack a lot of how the system works. One of them was once interviewed, and they said to the interviewer

said to them on national television on a news show, why do you, a member of Knesset from a Haredi party, a rabbi care about the moazin, that your right-wing coalition partners want to, want to lower the volume. And his answer was very simple. Right now, the Israeli right wants to do this to the Arabs, but when the left comes to power, by which you basically meant secularist Jewish parties, they're going to want to do it to me. In other words, I'm protecting in the last government where Yeshateed was the bulk of the government, set the tone of the government, a secular Jewish party, several initiatives that the ultra-Orthodox parties felt were against them were torpedoed by a coalition partner of Yashatid called Ra'am, Arab Muslim Conservative Party. And so the tribes coming to the Knesset and nobody ever having a majority and everybody stymieing the ability of everybody else to overwhelm the other.

folks all of this may sound very strange Israel may suddenly look like this absolutely bizarre country but it isn't this is very normal if you're from the Middle East everything I've just described is a successful version of Lebanon or Iraq half of Israeli Jews my friends come from the Arab world all of Israel's Arabs come from the Arab world. This kind of tribalist democracy, democracy rooted not in European theories of liberalism, although it is deeply informed by the European theories of liberalism. But its fundamental structure is tribal solidarity. This is what Arab democracy will look like when it finally takes serious and stable root in the region, which I hope and believe will happen. I guess what I'm

saying is when you look at Israel's democracy and you try to understand how it works, welcome to the first Arab democracy structurally in cultural terms, in Middle Eastern terms. Tribalism, tribal solidarity as the fundamental substructure of democracy as the basic check that allows the system to remain free and open makes sense if you know the Middle East. And, you know, By the way, it has worked amazingly well. It has actually worked. It has built this powerful Israel. And sometimes it fails.

But dear Westerners, sometimes your system fails too. But it has improved over time. The status of minorities, the liberalism, the ability of it matters to a lot of Israelis, that Tel Aviv is gay friendly and Jerusalem is not. a surprising number of Tel Aviv secular, gay-friendly Jews, very much pro-LGBT rights, are willing to have Jerusalem not be pro-LGBT because that's their tribe, that's their culture. Live and let live, everybody having their own public life in their own space, is what we usually call in Israel the status quo.

If you hear in Israeli talking about the status quo, which is talked about constantly by ultra-Orthrofts politicians and secular politicians alike, they're talking about this tribal divide. There's a reason Israeli democracy works, I think, in a way that Lebanese democracy doesn't. There's a reason we don't tear apart from the centrifugal force of all this tribalism, whereas Syria and Iraq did, or Libya or many other parts of the Middle East. And I think that reason is our specific Jewish history. In other words, because we have the centrifugal force of tribalism, we're constantly tearing each other apart. I have opeds from the 1950s in Israeli newspapers in which they're worrying about how now that we're all different in tribal and there's this huge Mizrahi immigration and there's the Arabs and there's the Jews in secular and Polish and German used to be a very big divide among the Jews. We're all going to fall apart.

But what held us together was a centripetal force, countering the centrifugal force of the refugee experience of the fact that the Israeli ethos of protecting each other come what may of the unifying force of having enemies, but other. of the refugee experience, of the fact that the Israeli ethos of protecting each other, come what may, of the unifying force of having enemies, but of also having a history

of being the last survivors on three continents, is that powerful solidarity that keeps it together. So to have a tribal democracy, you need the tension pulling us apart. That's what keeps the tribe

separate and checking each other. You also need the centrifugal force holding us back together. Back to the Supreme Court. Here's the left's deepest fear. This is the thing big enough and scary enough in all the hair-splitting legalism of judicial reform that very few actual protesters understand in any detail that drove hundreds of thousands out to protest over the last two years. This is why some said they wouldn't serve in the military anymore because the country wouldn't be a democracy anymore.

This is the fundamental thing that made people say you're destroying Israeli solidarity, that there's this politically, autistic right wing that insists on behaving like an elephant in a china shop that doesn't understand the country it claims to lead and so is doing terrible damage what if the left and the center left is asking the tribal balancing act is now changing what if it's no longer true that there isn't a majority. The biggest correlation from the November 2020 election, the election that we're still in, it produced the current Knesset. The biggest single correlation and characteristic between voters for the coalition and voters for the opposition is religious observance. What if a single tribe, religiously traditional Jews of various kinds, but unified as never before,

is forming out of all the many Jewish subgroups. And what if that single tribe is a majority? What happens then? What checks its power? The Knesset, where the majority always wins, the executive, which is chosen by the Knesset majority, it personally appointed, the court that is now being slowly demolished and weakened

in profound ways. I'm not talking about the specific reform that just passed this morning. I'm talking about the proposals that would give a simple majority override to the coalition to ignore anything the Supreme Court rules, which is part of Levine's original proposal. I'm talking about thing after thing after thing that collectively together just demolishes the court's ability to check executive power. What if there's now a single majority tribe and nothing can stop it? The right gets this kick out of saying you have BB derangement syndrome. The Israeli political right loves borrowing vocabulary and memes.

from the American political right, so it's modeled obviously off Trump derangement syndrome. But it captures something real. Bibi represents, Bibi built, Netanyahu built around himself, this coalition, invested in it massively, made sacrifices of policy, of his own opinions for it, held on to it at all costs, and slowly over time, roughly over the last 10 years, put together a coalition that so far has seen him through opposition, has seen him through many rejiggerings of the Knesset and many, many elections, run-on elections that he couldn't win. And by holding together that religiously conservative Jewish coalition that is demographically favored, he has built around himself

what may be a tribe that can no longer lose elections. And if that's true, and you're in Israeli minority, which could mean you're a secularist Israeli from Tel Aviv, who owns a high-tech company. Maybe you now feel disenfranchised. You not feel the system that has no checks that was never seriously thought through and built out. No longer is a democracy functionally for you. What if the tribalism that used to be a check that used to be the heart of Israeli democracy is now eating alive Israeli democracy? And that brings us back to this moment. Is judicial reform good or bad. Is it a restoration of democracy from an unelected elite, or is it the breakdown of democracy? Yes, both. Both. We have a runaway court that is unsustainable. It's just unhealthy, how powerful it is,

and how unchecked its power is. And we have an entire rest of our electoral and political system that is unhealthfully and unsustainably powerful and only checked by that overpowerful court. And a political right that wants to reign in that court is absolutely correct. And the left is absolutely correct, that the right is doing this in a way that is seriously irresponsible, totally un-serious about actually building the kind of constitutional protections that if you're not the majority are obviously missing, and dangerously so, and scarily so. What passed on Thursday in many senses is a compromise. The big thing was taken away from the court, a Supreme Court Justice only needs five votes for it to be appointed, so the justices no longer have a veto on the committee.

That's the big thing. And I was taken away from the court. The court was weakened, unquestionably. Also, the political part of the committee was expanded. But it was expanded at the expense of the Bar Association. In other words, part of the reform is that those two representatives of the nine from the Bar Association were removed. That's not a bad thing. The Bar Association is political.

It's mired in scandals and corruption. It doesn't have public, the respect to the public. It has been leveraging its influence in that committee for years, for all kinds of backroom deals that are very unsavory. And every time a scandal breaks out, nobody is surprised. To replace the Bar Association, the new law says that two other members of the committee, two delegates to the committee, have to be appointed whose personal qualifications would allow them to serve on the Supreme Court. So this isn't the disaster that some of the political opponents of this government, the opposition leaders, et cetera, have been saying it is. But it's just as disastrous and just as scary if the fundamental problem is tribal, because there's no other check. And in the Israeli system,

and it's hard to see from outside, as I've said, that's a valid fear. And so here's the thing. The biggest compromise is that this change doesn't take place now. it takes place after the next election. In other words, there's going to be a referendum on this. There's going to be an election. And if the right wins the election, the law stays. And maybe they start passing more laws of judicial reform. If they lose the election, the next government has already said,

Yeh Yer-Lapid got up, the head of the opposition, got up in the Knesset this morning and said, this will not last. We will change this law first thing when we are elected because you're going to fall because you brought us October 7 and want to destroy democracy. Well, if the people do that, if the people choose that, that's what will happen. And that's, again, very reasonable. That's the biggest compromise of them all. But also, it's good politics for the political right, right?

There's a lot of anger. I mean, a lot of anger at Netanyahu and at his coalition for October 7. 70% of the country still believes he should resign. But if you can make the election about a clear left-right political issue, That changes the subject from October 7, right? Suddenly there are a lot of right-wingers that may not like Netanyahu. They may blame him for October 7, I think, with a lot of justification or for, you know, slow-walking the war, which is something I have argued. But they'll want the court to shift rightward in the coming years.

And they might vote on the court and hold their nose over voting Netanyahu. So that's the political gamble behind this. And I think it's not an unreasonable one. But the left is still correct. The right just passed a mile. moderated version of the very big change, but it'll continue to legislate. Nothing promises that it just ended here. If it ends here, then we have a Supreme Court that is more responsive to deep, longstanding political change in the public. No one said it ends here. The whole reform would have been

a net good if this is the end of it, even if it tore the country apart politically and helped convince our enemies we're fragile. I mean a net good constitutionally. But is it ending here? The ideologues who are pushing this, Yaliv Levine and Sibhah Rotman, they don't talk about it ending here. They're refusing to say they're standing. Is the 61 vote override coming back? We don't know. And we certainly, I don't think anyone, not them and not the other side. Trusts either side not to do the foolish, wrong, populist, angry thing.

So the fear remains. And the fear remains legitimate. And the only way you really solve this problem is by going bigger, much, much bigger. In October 2011, Justice Antonin Scalia appeared before the Senate Judiciary Committee for a hearing on the role of judges under the U.S. Constitution. I want to read to you what he had to say. The Israeli political right loves, loves, loves borrowing from America, especially Netanyahu, who really fancies himself a kind of Republican in Israel. I wish they would. I wish they wouldn't just borrow BB derangement syndrome, means.

you know, political campaign strategists, I wish they would also borrow the deep wisdom of the American right. Here's what Justice Scalia had to say to the Senate. If you think that a bill of rights is what sets us apart, you're crazy. Every banana republic in the world has a bill of rights. Every president for life has a bill of rights. The Bill of Rights of the formal evil empire, the Union of Soviet Socialist Republics, was much better than ours. I mean it, literally.

It was much better. We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech of the press, of street demonstrations and protests, and anyone who's caught trying to suppress criticism of the government is called to account. Whoa, that is wonderful stuff. Of course, it's just words on paper, what our framers would have called a parchment guarantee. And the reason is that the real constitution of the Soviet Union, you think of the word constitution, it doesn't mean a bill. It means structure. When you say a person, person has a sound constitution. They have a sound structure. The real constitution of the Soviet Union, which was what our framers debated that whole summer in Philadelphia and 1787, they didn't

talk about the Bill of Rights. That was an afterthought, wasn't it? That constitution of the Soviet Union did not prevent the centralization of power. In one person or in one party, and when that happens, the game is over. The Bill of Rights is just what our framers would call a parchment guarantee. The real key to the distinctiveness of America is the structure of our government. One part of it is, of course, the independence of the judiciary, but there's a lot more. There are very few countries in the world, for example, that have a bicameral legislature. England has a House of Lords for the time being, but the House of Lords has no substantial power. They can just make the House of Commons pass a bill a second time. France has a Senate. It's honorific. Italy has a Senate. It's honorific. Very few

countries have two separate bodies in the legislature equally powerful. That's a lot of trouble, as you gentlemen doubtless know, he was, of course, talking to members of the Senate, to get the same language through two different bodies elected in a different fashion. Very few countries in the world have a separately elected chief executive. Sometimes I go to Europe to talk about separation of powers, and when I get there, I find that all I'm talking about is independence of the judiciary, because the Europeans don't even try to divide the two political powers, the two political branches, the legislature and the chief executive. In all of the parliamentary countries, the chief executive is the creature of the legislature. And just again in parentheses, nowhere more so than Israel.

Israel, because there's no direct election, because there aren't other mechanisms of checks inside that parliamentary election of the prime minister. I'll add another one. We don't really have a functional no confidence vote. The British parliament can vote no confidence in its prime minister and the prime minister is gone. The Israelis have. have what is called a constructive no confidence. In other words, the same vote in which the prime minister is toppled has to appoint another government, another prime minister from within the same parliament. Well, usually the same parliament doesn't have many options for other prime ministers in the sheer numbers that the parties brought to the table. That's why that particular person

became prime minister. Constructive no confidence is a very weak, no confidence. And it's one more way in which the Israeli executive and parliament are essentially unitary. back to Scalia. In all of the parliamentary countries, the chief executive is the creature of the legislature. There's never any disagreement between them and the prime minister, as there is sometimes between you and the president. When there's a disagreement, they just kick them out. They have a no-confidence vote, a new election.

They get a prime minister who agrees with the legislature. And the Europeans look at this system, and they say, well, it passes one house. It doesn't pass the other house. Sometimes the other house is in the control of a different party. It passes both. And then this president has a veto power. vetoes it, if they look at this and they say, ah, it is gridlock. And I hear Americans saying this nowadays, and there's a lot of it going around. They talk about a dysfunctional government

because there's disagreement. And the framers would have said, yes, that's exactly the way we set it up. We wanted this to be power, contradicting power, because the main ill that beset us, as Hamilton said in the Federalist, when he talked about a separate Senate, he said, yes, it seems inconvenient, but inasmuch as the main ill that besets us is an excess of legislation, it won't be so bad. This is 1787. He didn't know what an excess of legislation was. There's then laughter in the room.

So unless Americans can appreciate that and learn to love the separation of powers, which means learning to love the gridlock, which the framers believed would be the main protection of minorities, the main protection. If a bill is about to pass that really comes down hard on some minority and they think it's terribly unfair, it doesn't take much to throw a monkey wrench into this complex system.

So Americans should appreciate that and they should learn to love the gridlock. It's there for a reason. So that legislation that gets out will be good legislation. Folks, the Israeli democratic system was never planned,

was never thought through. There was no Philadelphia Convention. There was no federalist papers. There's no written constitution. There's no Bill of Rights. Australia doesn't have a Bill of Rights either. But it has so many of these other checks, and it doesn't have the tribalism. The Israeli system is a system led by people who don't really want to understand it,

who only really use European language to describe something that is a little bit more complex than just a narrow, simple European system. the Israeli system may no longer be working as well as it used to the country is ten times bigger in population everything is more complex there are challenges there never were before it's wealthier than it ever was before social classes have a disparity of income and wealth that never existed before fundamental questions set Israelis against each other in ways that are new there are There were previous other problems and ways, and the country set against itself, but there are now different ways, and we need new mechanisms to sort that out, to mediate our life together.

And so I come to the Israeli right as someone who thinks the court is too powerful, as someone who goes back into the Deripin-Chassie case, which you should all look up, and doesn't understand why the attorney general is deemed infallible by the Israeli Supreme Court. And just to say, well, this is the child with the finger in the dike tells me that the Israeli left is unsurious about the problem. If the weakening of the court destroys our democracy, then we don't have enough institutions. Why isn't that what the Israeli left is saying? The Israeli center left is arguing weaken the court. That makes sense.

It's an outlier in democratic courts. But then build me other checks elsewhere. Why isn't that the demand of the Israeli left? That would be a much more successful kind of reform. And to the Israeli right, who loves to borrow every thought and every vocabulary ever produced on the American right, give us that American right, not the shallow inanities of the Twitter discourse of the American right, give us its deep wisdom. You want to fix Israeli democracy?

You want to strengthen Israeli democracy? Give us Scalia. What would Scalia do should be your motto? Give us a structure that sets power against itself. Within the American debate, by the way, Scalia is one camp, and there are many opposed, and there's all that fight. I'm not talking about that fight. The thing Scalia specifically is talking about, American jurists on the left as well would

talk about, would tell us. This is the Federalist Papers. Give us that. The left is afraid that the tribalism of the past no longer preserves our democracy. Well, give us a constitution that previous generations couldn't. Give us new checks. Give us mandatory primaries, maybe. In Holland, they have a nationwide single-constituency party list system like Israel with a few more checks that we don't.

The back of the ballot is a preference for individual candidates, is a primary race. That's another check. And it would be easy to implement. Give us that. Give us a new House of Parliament elected regionally with a veto on the existing one elected nationally. we have a relatively small parliament for our population. Expanding it is a good idea. A bigger parliament means that a single MK doesn't have to belong to five committees he can't handle. And if he could actually be in two committees seriously, he or she, they'd be a much better check on the government

because they would actually know what the heck is going on in the government. Give us a check on you. Be the builders of a democracy that is stronger than the democracy you inherited. instead of the tramplers of our sense of trust in solidarity through this kind of political autism is my best description for it refusal to see that the fears on the other side are real even if you genuinely believe your argument is correct you don't change constitutional orders without trust

and that's what the Israeli political right is trying to do and so even though it is right on some significant part of the substance it is wrong in how it's doing it and how you do constitutions is as important as what's in the Constitution build us a structure that will stand the test of time and then you will have fixed

and not just broken things judicial reform isn't good or bad it's what we make of it we need to make of it what we need it to be thank you so much if you stuck with me for this long talk we're going to put some links to Scalia

and other things in the show notes and I will see you in the next episode you in the next episode