The Dispatch Podcast - Israel's Constitutional Moment

Episode Date: August 6, 2023

Israel is undergoing a sea change. The battle over a judicial overhaul hides much deeper national schisms. The Times of Israel Senior Political Analyst Haviv Rettig Gur joins Senior Producer Adaam James Levin-Areddy to try and make sense of the mess. Will the reform fix or break Israeli democracy? Why doesn't Israel have a constitution? Why are elite military volunteers joining the protest? Does Benjamin Netanyahu have a plan? Is the Israeli left dead? Is the Israeli right broken? And what does "right and left" even mean? (Not what it means in the U.S, that's for sure!) Show notes: -Gur's profile at the Times of Israel -The Morning Dispatch's latest coverage of the overhaul -Who is Itamar Ben Gvir? (A Dispatch Podcast explainer)  Learn more about your ad choices. Visit megaphone.fm/adchoices

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Check. Close the garage door? Yep. Installed window sensors, smoke sensors, and HD cameras with night vision? No. And you set up credit card transaction alerts at secure VPN for a private connection and continuous monitoring for our personal info on the dark web.

Uh, I'm looking into it. Stress less about security. Choose security solutions from TELUS for peace of mind at home and online. Visit TELUS.com. Total Security to learn more. Conditions apply. Welcome to the dispatch podcast. I'm Adam, senior producer at the dispatch,

and today we're going to talk about the Israeli judicial reform. As you probably have read, hopefully on the morning dispatch, Benjamin Netanyahu's government in Israel is trying to advance laws to limit the power of the courts. They say that this is an overdue correction

and necessary to restore the balance of powers while opponents who have taken to the streets in massive protests over the past few months say that this is actually an attempt to subvert democracy. So I'm joined by Kaviv Gore, political analyst for the Times of Israel. He is a fantastic journalist who have been reading for over a decade.

And honestly, if you're looking for smart, anti-partisan coverage of Israeli politics, you should really check out his writing. He's going to give us some background on the Israeli system of government and how we got here, but also insight into what's really animating

this Israeli culture war. We try to avoid getting too deep in the weeds, but at times it was inevitable if only to show just how different Israeli politics and culture is from the US. It's easy to forget that sometimes. So is the Israeli democracy in danger because of the power of the Supreme Court or because of the reform?

Are we currently witnessing the fracturing of Israeli society or the revitalization of its civic society? I think Kaviv's answer is going to be yes. Javiv, thank you for joining me. Pleasure to be here. Okay, so this is a challenging conversation because we do want to get to the heart of what's going on in Israeli society right now, which is much deeper than a high-level theoretical discussion of the scope of the courts. But to get there, we do need to give some background.

So let's start with the most basic. Israel doesn't have a constitution. Right. Okay. So it's a little embarrassing to talk to an American audience about the Israeli system because America has one of the most astonishing, complex, beautiful system of checks and balance. balances. The founders were really worried about things like majority tyranny, right? Majority rule that the mob would, would oppress minorities. They were building the first modern democracy, so they built institutions with vetoes, a Senate, and a House, and a White House. Every American

knows this, right? Let's say you're a populist who wants to do something terrible, kill the minorities, or something horrifying, right? And you need to pass laws to allow you to do that. So you manage to sweep the country in a massive populist way. Well, you can only take the House in that populist wave, right? Only a third of the Senate is up for votes. You need to do another two years of waiting and continuing to sustain that fever pitch to have a hope of taking over the Senate. And if you've done that and then you pass that law in the Senate and House, it goes

to a president, and the president might not be someone you managed to take over in office, right? And the president can veto and then you need two-thirds. Then it goes to the court. And the court is people appointed 20 years ago. So they'll say, no, it's not constitutional. And then you need three-quarters of state legislators to change that constitution. that's already 15 years and, I don't know, convincing 15,000 legislators out there, right? The founders built a system meant for the majority to get what it wants, but very slowly.

And you go from that vast and brilliant complexity to Israel. And in Israel, you find probably the simplest political system, probably the simplest electoral system in the world. Let's call it streamlined. So explain, why do things move fast in Israel? We have the entire country, first of all, is a single constituency. Both in the sense that Israel is unicameral and there are no districts. And it gets worse. Because we don't have direct election and regional district election of their actual candidate,

no Israeli votes for any individual member of the parliament, what we vote for is party lists. And we don't choose the list. Who does choose the list? Functionally, the party leader picks those names. So the result of this is that when parties are in power, the members of parliament are more indebted to their own party leaders than to their voters. Exactly. Why can Joe Manchin give Joe Biden a terrible headache all the time, right?

Because Senator Joe Manchin is elected by Democrats who are more conservative than other Democrats because he's from West Virginia, right? And he can resist other Democrats because he has his own voters. in Israel, the people sitting in the executive branch, those cabinet members, literally appointed the majority of members of parliament. Imagine if the White House literally appointed most of Congress. That's our system. So to clarify why this is so crucial to the question of judicial overhaul, the result of the Israeli system is that the legislative body, the parliament, the Knesset, is,

is in a real way subservient to the executive. In other words, Israel doesn't have the sort of Montesquian balance of power between three branches of government. Rather, it has the executive. And the only meaningful check on the executive is really the courts. Yeah. The only check on the system is the court. And that is because we haven't sat down and written a constitution that actually builds out these institutions the way the Americans did and the Canadians have since done and, you know, and all these other countries have done.

And so this court over the years, because there really is no other way to check the parliamentary majority, has become slowly piecemeal decision after decision immensely powerful. I agree with the Israeli right that it is probably the most powerful court in the West in the democratic world. it's not enough. I agree with the Israeli left that it is not enough just to weaken it because our system is so simple. And that's the heart of the problem.

So before we get to where we are now, can give us just in some historical context of why is it that the Israeli system, which took so much inspiration from Western democracies in the language of its founding, why was the system itself so slapdash? That's a very good question.

Why did we never write that constitution? We have a lot of lawyers in this country that's not, you know, theoretically, by the way, the Likud Party back in the 40s, it was then called the Karud Party, actually wrote a constitution for Israel and wanted to push it through and the left wouldn't hear of it. And since then, there have been many, many proposals for constitutions, but we never actually passed a full and serious. and thought-out constitution that builds in these checks and balances.

And I think there's a good reason for it. In the early years of the state, this country was ruled by a party called Mapai, which was a deep socialist party, just in the classic East European, you know, 1950s version of socialism. And that party believed, and David Ben-Gurion, the prime minister at the time, he was very pro-American, but he was a socialist on the Eastern European model. So we never fell into the Soviet camp. But we were internally, we were socialist.

And he believed that, like a good socialist, that the future is progressive, and that progress is the only thing that will happen and you don't have to pay attention to conservatives. And he believed that constitutions, and by the way, also strong courts, he also opposed that. He believed that those kinds of institutions are places where reactionary conservatives sort of dig in their heels and hold the line and prevent progress from happening. And because he's a good socialist progressive, he thought that that would be a bad thing. And so we should let the future – and he gave speeches on this in the Knesset. We should let future generations change things as they see fit.

Majority should rule, and the majority is always going to be progressive. The irony today, of course, is that the Israeli majority in the population is pretty conservative, and the left is now very much in support of these conservative institutions, like the court, to rein in the ability of the majority, which is conservative. to do. In other words, there is a deep irony in this whole long process. And then add to that that Israel is a melting pot

of different people from all over the world with different traditions, even within Judaism and even within, say, religious Judaism. And as a result, you're going to get such divergent views about what should be the role

of the state in regards to the individual, in regards to religion, in regards to national identity and then add to all of this the non-Jewish populations in Israel and you begin to understand why it's so difficult to even agree on the rules of the game. But okay, we don't have a constitution. But the heart of the criticism that we get now against the court refers specifically to something that happens in the 90s, something that's referred to as the judicial revolution in Israel that was led by Justice Alain Barak.

Can you tell us about that? Right. So, you know, a lot of the imbalances that we've already talked about make the court immensely powerful already leading up to the early 90s. But then in the early 90s, a justice of the Israeli Supreme Court named Dahon Barak, who is slated to become the chief justice. You become chief justice by seniority. And so everybody already knows back when he's a regular justice,

that he's going to be the chief justice, when the chief justice retires. Israeli justices are required by law to retire at the age of 70. And Aaron Barak had always been pretty liberal and pretty activist, but in the early 90s, he begins to massively expand the reach of the court. And he begins to expand that reach and things that lawyers will know. And if you're not a lawyer listening, I apologize. But on questions, for example, of standing, right?

standing is the idea that who actually has the right to go to court, to appeal to the court. You have to be victimized by something the state is doing in order to appeal to the court against the state. You can't just appeal to the court against the state in the United States if you think the state is doing something wrong to somebody else, somewhere else, right? And so if you have, for example, on an abortion case, for example, where the ACLU brings an abortion case to the courts, right, they do need to find a woman who is victimized in their argument by one of the abortion policies of a state that they're suing. They can't just do it because they disagree. Not so in Israel. In Israel, the ACLU could just come forward as the ACLU. They don't need a

victim. Everyone has standing to appeal to the Israeli Supreme Court against the state on almost any issue. Just disability. Arun Barack himself expands just disability almost infinitely. Just disability is the idea that the court has the power to even rule on something, right? Is this a thing that law can take care of? Or is this possible? culture, legislation, something else has to be dealing with this issue? Or can the court actually rule on it? Is this justissible? Arun Barack famously said the line, everything is distissible. Everything is justissible. Now, if everything is justissible, that includes foreign policy. Everything is justissible that includes the Prime Minister of Israel appointing people to the

cabinet. There was a case brought in 1993, excuse me, for, against Prime Minister Ishak Rabin of the left. The court takes this massive activist turn, already beginning in the 80s, but this dramatic turn happens in this one particular case in 1994 against the government of the left, not against the government of the right. A propos, not being as partisan an issue as it is today, it used to really be a much more substantive debate. But the court rules that the Rabin government, the prime minister, cannot appoint a minister who is going to be indicted down the road. and the reason is that it would undermine public trust in government. But it is legal to do so explicitly. And this minister has said that as soon as I'm indicted, I'm going to resign, I promise. And he published that promise in public.

And the prime minister really needs his party and his coalition to advance the Oslo peace process back in the day. Nevertheless, it would undermine public trust. And therefore, just because it stinks, just because it's inappropriate, it is illegal, rules Aharon Barak. But it gets much more dramatic than that because Aaron Barak rules another thing. The Attorney General in the government at the time says, I don't think this appointment should happen. And the Prime Minister says, I think the appointment should happen.

And by the way, the law is with me. And the Attorney General goes to the High Court of Justice and gives his opinion, not the Prime Minister's opinion. And so the Prime Minister says, you know, this guy, the technical term, name of the Attorney General's title in Hebrew, is legal advisor to the government. And so Robin comes to the court and he says, I'd like to defend myself, my own policy, because he won't defend my policy.

He's my legal advisor, but for some reason he disagrees with me and thinks his opinion matters more. And Justice Aron Barack rules that the Prime Minister of Israel cannot appear before the court to deliver his views because the Attorney General's opinion is officially the government's opinion under law and is the only opinion to be presented in court. And Robin told, demanded from the Attorney General, the Attorney General agreed to submit something in writing that Robin wrote to the court, but Robin couldn't come in up here before the court. This is a doctrine invented back in that particular case of essentially the legal advisor's infallibility. And so there is this just whole string of decisions like that.

If American living constitutionalists see penumbras and emanations, at least they find them as emanating from the constitution, whereas in Israel, the penumbras just emanate from nothing but the moral judgment of the philosopher king judge. Yes, if we're lucky. If we're not lucky, the legal advisor of a ministry. Yes. So it's not that big of a stretch when the rhetoric against the courts is that it's run by a robed junta or a click of unappointed philosopher kings. And part of this criticism is that the justices have,

too much power in their own appointments, how do justices get appointed in Israel? There is a nine-member committee under law that is called a judicial selection committee, and three of the members of the nine are justices of the Supreme Court, two of them are members of the Knesset, two of them are members of the cabinet, and two of them are members of the Israel Bar Association, on the apparent theory that they represent the legal profession or something. You need a simple majority in the committee to appoint regular judges of every court in the country, accept the Supreme Court where you need seven members of the committee. Now, that seven member requirement means if people are following me and are good at math, because I never get this the first

time, but that means that the three members of the Supreme Court can prevent a seven majority vote and therefore prevent an appointment to the Supreme Court. In hundreds and hundreds of votes on that judicial selection committee over the two decades, those three members never split their vote. In other words, functionally, the court acted as one and had a veto over appointments to itself. However, under the term of Justice Minister Ayala Chaked from 2015 to 2019, she was justice minister for four years. She's a conservative. She's a critic of these things, of the court's activism. And she basically was willing to just not appoint justices to the court as the court, you know, empties out because justices retire. And she managed to tell the court, guys, you know,

I also have a three vote veto now. You want a person on the court, we're going to negotiate this. And they negotiated. And there are now something like four judgeses who are considered quite conservative justices. They're also personally right-wing. Some of them have been right-wing political activists in their youth, religious justices. In the last government, in the last term of the Lapid Bennett government, the very first Mizrahi woman was appointed to the Supreme Court, which is there's this huge question of diversity. There's way too many Ashkenazim on the court. It's unrepresentative and all of that. And so yes, it's a click. No, it's not. It's not. It's not actually a click. It's something more complex than a click. Once you get to the court, people tend to

turn out to be more activist than not because the court's activism isn't accidental. Explain that. I realize that you and I know something that most people probably don't know because the Israeli Supreme Court is two courts and in a way that doesn't exist in America and that might be hard for an American to imagine. The Israeli Supreme Court is two different institutions. It's the same 15 justices in the same building in Jerusalem, but they actually function as two completely different institutions. One is the highest court of appeals, just like the American highest court of appeals, but the Israeli high court is a second court, which we call the high court of justice. And that's the highest court of equity. It's a court of direct appeal. It's a court of first appeal. What is a court

of equity? It's a court that anyone affected by the state can go to against any branch of the state doing, again, doing to them anything. Eminent domain, right? The government wants to steal your farm from you in order to build a highway that everybody needs, right? Well, that's a complicated question, and it's a complicated question in every legal system. And you can appeal to this court of equity, right, to this court. You could say, hey, they're doing something bad to me. Palestinians routinely appeal to this court of equity against some branch of army or police or settlers or any part of the Israeli state or even not just the Israeli state allowing something to happen is the subject of appeal. That second court.

The first court, the court of the highest appeal from the district court and deals with criminal cases and it's just the highest court, it hears a, I don't know, a couple dozen cases a year. It's not, that, that's very normal court. I don't know of any serious critique of that side of the court. Everything we're talking about is baguats, the highest court of justice, the court of direct appeal. Folks, this court hears thousands of cases, okay?

A year, it is a court to which you can appeal for, I believe, 400 checkles. That's about $130. $130, you can literally file a petition, and a justice of the Supreme Court of the country in a couple of weeks is going to hear you and is going to rule, and probably hear seven different cases a day because they have to run through them very fast, and it's going to rule whether the state is doing the right thing or the wrong thing to you, and everyone can appeal all the time on anything, any branch of the state is doing anywhere. That's what we're talking about. Set aside for a moment, questions of doctrine and just disability and standing and activism, just the very fact

that you have this court, and that it is the highest court in the land, is already immensely powerful. Right. So this brings me to trying to make sense of the attempt to get an overhaul. Right. So first, yes, the courts are immensely powerful in a way that has no sibling, no parallel in the liberal democratic world. However, Given what we said at the beginning with the lack of constitution and the unity of the government and the legislature means that we really only have two branches of government in Israel. So any attempt to weaken the courts won't lead to the supposed restoration of a balance of power that never existed, but rather necessarily means giving more unchecked power to the executive branch, As things are set up right now, it's a zero-sum game between those two branches. And let me make it more complicated. I think every 45 seconds or so, we're making an argument for the other side, right?

We keep switching for, this is why the left is right, this is why the right is right, this is why the right is right. Here's another reason the left is right after saying all that about this immensely powerful court, okay? In the parliament, right, who actually has the power? And the answer usually historically in Israeli coalitions hasn't been the majority. big party of the government. The answer is usually the small party on which the big party depends. And so you have a le couped party that even though it is half of the coalition, three quarters of the coalition, depends on which coalition or what year, but nevertheless is the by far largest party in the coalition. Which to be clear, that's Netanyahu's party, which currently runs the government.

But its government collapses if it doesn't have all the other satellite parties. And the other satellite parties know that. And so ultra-Orthodox parties in Israel, have a massively outsized influence over the government way beyond their actual votes and way beyond their actual seats because without them you can't build that coalition. Take that into this government and you'll start to understand also the panic

on the center left. Right, because as we discussed in a previous dispatch podcast episode with Tomil Peresico, this government which started less than a year ago is seen as one of the most far-right governments in Israel's history, mainly because of the Jewish might party led by semi-rehabilitated extremist

Ui long wannabe, Itamar, Ben-Gviel, who is currently police minister. So Ben-Gvir's party, which didn't get half as many votes as Netanyahu's Likud Party, nevertheless has outsized leverage over the current government. Netanyahu's government falls. He loses his parliamentary majority. if any single one of those parties leaves. And that includes Utsmae Udi, led by Itzomar Ben-Gvier. How could this man, formerly convicted on terrorism charges,

who celebrated the death of Itschak Rabin when he was assassinated back in 95, and has been a defender of terrorists since, of Jewish terrorists since? How could this man now be the police minister of Israel? And the answer is Netanyahu needs those votes. Right. So what do we actually have here? We have a unitary legislative executive, a single power center that makes all executive decisions and can push anything it wants through Parliament. And it can be taken over very easily on one issue after another by the most extreme elements within the ruling majority.

And we have the court balancing against all of that. And don't forget that without a constitution, Israel has no legal ballast for, you know, civil liberties. There's no Bill of Rights. There is no bill of rights, exactly. There's no freedom of expression, no freedom of assembly. No, freedom of religion, freedom of petition, freedom of freedom of the press. There's no freedom of the press. Not only is there no freedom of the press in Israel, written down in law. There is all these things exist. All these things exist. We have perfect freedom of speech. You cannot shut up Israelis. Try it, right? It doesn't work. But we don't have it in law anywhere. And so all the guardrails are gone. There's this now that everything we just described is, utterly unhealthy.

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Okay, so we have the current SNO government getting into power in January with Ben-Gvier and the rest. What do they propose to do to the courts? So the government's proposal back in January, and it has since been split up and moderated, and there's a big fight over whether it's been moderated with a lot of the opponents saying it hasn't been. whatever. The government's actual first proposal in January was this immense reform with many, many moving parts. But essentially it boils down to the government completely dominating the court. And the court basically disappearing. For example, one of the measures in the reform proposed in January by Yereef Levine, the justice minister, is what we call a 61 override. A 61 override stipulates that a court decision that the Knesset doesn't like, that the government which is the Knesset majority in a parliamentary system, doesn't like. It simply can vote with 61

votes to ignore. Now, by definition, a government in a parliamentary system has a parliamentary majority, and the smallest parliamentary majority you can have is 61. We have 120 members of parliament. 61 is the smallest majority you can have. So the government can literally just ignore any decision that court makes. Not only that, the big proposal went from the current Selection Committee that we have to a committee that hands the coalition, the Knesset majority, the government, essentially, a majority on the committee for appointing Supreme Court justices without them to reach across the aisle at all to anyone. Really important is a debate over our basic laws. Right now, we have these basic laws. They're 20 or so, I think 21 basic laws.

But these laws are not constitutional in a very deep sense. They're very easy to change. They're not rigid. Rigid means you need a very large majority to change them. Or you need the American Constitution, you need three quarters of state legislators. That is extraordinarily rigid. Israeli basic laws, the basic law of human dignity and liberty can be changed by a simple majority. And so you have these basic laws.

And by the way, the Israeli parliament doesn't respect them as a constitutional laws. I'll give you an example. We have changed those constitutional basic laws. 23 times in the last five years. The Israeli parliament changes the rules of our democracy whenever it happens to be inconvenient, how the rules work. We have a, imagine a constitution that the White House could just change, okay? Not the White House. You want the White House the other guy wants, okay? I don't know who you vote for, dear listener, but if you vote for Trump, imagine the Biden White House being able to amend the Constitution with a simple vote in the

house when it controls the house by definition because it's a parliamentary system. That's how the basic laws work. Now the Supreme Court is part of its expansion of its powers over the last 30 years has said, I'm canceling this law and I'm canceling that law and I'm considering this unreasonable and that unreasonable based on them not fitting my interpretation of the basic laws, which are constitutional. And then the Supreme Court started to say a couple years ago, oh, by the way, I can also check the reasonableness of constitutional basic laws. Well, if the Supreme Court can check the reason, can judicially review the basic law. The Supreme Court doesn't respect it as constitutional. By definition, the Supreme Court can't review a constitution. That's what a

constitution is. So the Knesset deeply disrespects the basic laws and does not at all treat them like a constitution. And the court, after the Knesset, it should be said, maybe has taken the cue from the Knesset, doesn't respect basic laws as a constitution. And so we have this debate where in the reform proposal in January, the Justice Minister proposed to make basic laws immune to judicial review. By the way, he was going to do it in a basic law, which the Supreme Court feels it can review. So it's not clear how that works. But it would be immune to judicial review. And then people like me said, fantastic. Not me, you know, great professors who I learned from as well, right? Not just me. But we said, great, fantastic. Make basic laws immune traditional review. Give us a constitution.

But make them rigid. Make it take ADMKs to change them. Make you have to reach across the aisle to change our Constitution order. You want to make any law that the Knessets literally writes the word basic at the top in mutual judicial review. You put together all the different, all the 15 things, requiring 15 out of 15 votes on the Supreme Court to throw out a bill is part of that reform. Now, everyone here knows about the American Supreme Court voting on deep controversial culture war decisions. It's never unanimous. And so the idea that you should have unanimity is, is, again, erasing the Supreme Court. In 15 different ways, the reform proposed in January

erases our Supreme Court. And the people proposing it have admitted that since then. And when Israelis took to the streets and said, this is horrifying, I have read, I have read an American conservative media in the Wall Street Journal op-ed pages, defenses of this reform, because the Israeli Supreme Court is massively activist

and really genuinely problematic. And I've been surprised at how deeply they have missed the point because there's so much more happening here. The court is absolutely ridiculously and unhealthfully activist. And there's nothing else. And the people pushing a lot of these reforms are the right-wing edge of this coalition that would take advantage of that in ways that could be very damaging to this country. And so I don't know. It's one of those cases from where I stand. Everybody's right. Everybody's right. And that's what's so frustrating about this political moment. Everybody's right except for, I would say, some of the international

coverage of this debate, which, especially American coverage, which tends to elide the intractability of this moment because they would either want to paint a picture of the right stealing democracy or of the left being unreasonably recalcitrant against a government that they didn't like getting elected. Yeah. People who say if you weaken the Supreme Court, Israel's democracy dies, right? People like Tom Friedman. What if you just admitted? You've just admitted that the only thing we have is that court. But you've just acknowledged without noticing it because Israel is this moral narrative in people's minds and not enough of real country that they think they have to actually engage in sophisticated, complicated ways. It's a little exhausting to be a moral, you know, story running around in other people's heads, which we are. But yeah, all this, the views on what's happening in Israel today overseas from what I can see generally can be categorized by what part of it you're willfully ignoring. To linger on this for another moment, the word democracy is being used

an interesting way in this argument because opponents of the reform say that the overhaul is anti-democratic. Proponents say, on the contrary, we are reclaiming democracy from the oligarchy of the court. But it's interesting because both sides, again, to use your phrase, are right. The right is talking about democracy as majority rule. Demonstrators are talking about a liberal democracy, a democracy of values. I think that's exactly right. The problem here is that in my reading of the situation, Benjamin Netanyahu wants a liberal democracy. He's on that side, right? The forces pushing the radical version of the reform that began this whole story, those forces, I think, are not liberal. They're deeply illiberal. They say it out loud. And so the fault line cuts right through the coalition,

not between coalition and opposition. Here's the thing. The right, after proposing that horrifying proposal back in January, has scaled it back massively and has claimed that it's no longer even thinking about that. That was a maximalist position for negotiating reasons, and it doesn't want that to pass. And why is the left still demonstrating and angry and protesting? How could it, that proves that they're dishonest. But when you go to the protests and you talk to people, what you hear is that that first proposal to erase the court and essentially allow the country, it is not crazy to think that Itemar Ben-Vir will run Israel, de facto in hard policy terms.

if the court is weakened the way that reform would have weakened the court. And what that did was cost them trust. They lost the capacity of most Israelis. By the way, the distrust for this government to pass this judicial reform cuts deep, deep into Likud, into Likud voter base. We have polls on this, something like 25% of Israelis want the reform to pass as is. Half of the voters of the government don't want this reform to pass as is. And that's a signal of distrust of the government passing it.

So they launched this incredibly delicate process to do something very dramatic. And they launched it in a way that convinced half the country that they're declaring war on democracy and reasonably convince them of that. I don't think they were declaring war on democracy. I think they were stupid. But what arguments can I bring to the Israeli left to say, oh, don't worry, this was pure folly. This wasn't malice, right? That's a very weak position for me to be in. And Netanyahu hasn't done much to regain this trust.

Benjamin Netanyahu has made the run of American media. He's interviewed in major American press, television. He's interviewed with newspapers. He's interviewed with podcasters. Netanyahu has given no interviews to the Israeli press or to parts of the Israeli press that aren't right-wing outlets that fawn over him. He won't interview in the Israeli press for months. but he interviews in every possible American outlet that will have him.

And as he goes on these interviews, people are not asking him the right questions. But here's my question to Benjamin Netanyahu, which he will not answer. Where's the rest of it? Where's the rest of it? Waken the court. That's fantastic idea. It's incredibly unhealthy. It generates tremendous blowback.

It is an elitist institution. All courts are elitist institution. Just read Alexander Hamilton. But give me other checks. Netanyahu, when this thing was exploding, took to television, he interviewed back in a short blitz after freezing the reform in March when the union started closing down the country and companies started going on strike, he shut down the reform and he launched this negotiating process at the president's house.

And then he did give a small handful of interviews very, very briefly. And one of the promises he made was just to show you the intent that we are Democrats. Democrats, lowercase D. We're going to pass a Bill of Rights with this reform. He said that on national television multiple times. Where's the Bill of Rights? Not only isn't there one, none is being written. It was a random throwaway comment by a man deeply irresponsible

in how he has been running this moment that should be a constitutional moment. You want to change our constitutional order? Reach across the aisle. Convince the country, you are a man who can do it. get up and stand up in front of the people and say half of you distrust me. Some of this coalition behaved insanely. I am not going to demand your trust. I am not going to assume your trust. I'm going to earn your trust. Here's the other six checks and balances. I want to tell you Israelis, I, like the founders of America, he loves talking about America, am terrified of my own power

because I'm a Democrat. And so I will do that. Here's the Bill of Rights. And we're going to debate it. And it's going to be complicated because the ultra-Orthodox and the liberal left don't agree on bills of rights, but we're going to find something. And I'm at least going to pass two rights, if not seven. Where is that Netanyahu? All we have seen is a government that presented a bill to destroy the Supreme Court and since then, in the seven months that have happened since then, doesn't understand why people don't trust them, not to still be wanting to do them. And that is not a substantive criticism of reforming the court. That's a political criticism of how it was handled. You can destroy a constitutional moment politically without any connection.

to whether the court is too powerful or not too powerful. Now, in the meantime, the other members of his government, including Ben-Vir, have been advancing legislation that further erodes public trust in the government's commitment to a liberal democracy, right? Astonishing things. Astonishing things. I'm embarrassed to even talk about them because they don't represent my country. But Ben-Vir today is pushing a piece of legislation.

It would allow arrest without warrant of Israeli citizens for weeks because he has to fight organized crime and he's a police minister and he's proven tremendously incompetent in doing so. And there's a massive crime wave and it's on the rise. And he has spent most of his time pontificating and posturing and doing all the things that extremist populace do when somebody actually gives them power and they've never used power and don't want to use power because they're much more comfortable screaming and shouting on the sidelines. And so he has decided that he's going to solve it by removing warrants from the arrest process, removing the courts, essentially, from the arrest process. So Israelis, if this passes, then Likud won't cancel the bill because they're afraid he'll walk away. So Likud has delayed week after week after week a vote on the bill. Well, what the hell is that? If I am not predisposed to trust Likud because I didn't vote Likud, that sure is how it looks like exactly what the left says it is.

And there have been a hundred, somebody counted, I think, 140 of these bills. There was a bill by the Shahs party, the ultra-Orthodox party, that would have instituted, and they could cancel that bill. But if not before, it was splashed on every front page of every Israeli newspaper, that would have instituted felony charges. It would have made it a felony to dress immodestly, for women, to dress immodestly at the Western Wall, which is the sort of a central Jewish holy site. But the question of immodestly, it's not that they would have dressed naked, right? Public nudity is already illegal, right? They would expose a knee. They would show a knee.

They would show an elbow. And that would have had a prison sentence of a six months applied to it by this law. Dozens of other things. We have rabbinic religious courts. It is a kind of a medieval thing. We want to reform it. Nobody likes these courts. But those courts' powers are expanding.

Well, if you're a secular liberal woman, if you're a secular liberal anything. It just literally just not someone who would go to a religious rabbinic court to get divorced. The fact that those courts will now be given by legislation the power to decide alimony is horrifying. It is directly affecting Israeli's daily real lives. It's being done as like thieves in the night where this right-wing government that can't do anything without ultra-Orthodox votes has just passed a massive increase to subsidies that are being essentially paid by the largest taxpayers of Israel, who are the half of Israel who are opposition voters to massively subsidize the welfare state of the ultra-Orthodox,

you know, apropos American conservatives who are listening. And also, if I remember correctly, one of those laws allows the central government to interfere and supersede local elections? The Tiberius law is this amazing law that, yeah, massive interference to the point of canceling local elections. There is an emergency measure in law that has always been and it's a very good thing that allows the central government to cancel and to fire essentially an elected mayor and city council.

If a city doesn't pass us a budget for, I don't know, a couple years, I don't remember the exact details, but if the city really is collapsing. So it's meant originally as a remedy to delinquency? Yes, that's the point of it. And when the new mayor is appointed by the Interior Minister of Israel, that new mayor cannot run in the next election. In other words, the point is that it is not. not the central government interfering in local democracy. It cannot be that because that is horrifying and unconscionable. That was the way things worked until July 5th. As of July 5th, the Knesset passed a law. And that law says that this appointed mayor, this unelected mayor who

replaces on an emergency basis, a city's elected mayor, can now run in the next election. They are stripping away the major guardrail to prevent the central government from essentially just canceling local elections that don't go the way they want and appointing their own confidant. If you're a national party and control of national ministries, you can send hundreds of millions of shackles into that city as part of his campaign. And so essentially it is a law that allows national parties to just take over and cancel local elections. That passed, and it passed to the horror of Likud. We have SMSes and WhatsApps from internal WhatsApp groups of Likud that leaked out of the party where MKs are talking about the corruption of this law. And you know, in the context of the overhaul and all these radical laws passing,

where is Netanyahu? I always saw Netanyahu as a secret centrist who will make enough gestures to appease the base while in truth maintaining the status quo so he can focus on growing the economy or expanding the Abraham Accords. But it's increasingly hard to make this argument seeing all those

status quo breaking laws that do get passed. Yeah. Look, it's important to say the vast majority of them failed. But you know, not all of them. Nathaniel has gone on all these podcasts and television shows in America and he said again and again and again,

I have two hands on the wheel. I have controlled. Well, Netanyahu, if you're in control, is all this on you? Is that you in control? So did he want this? And, you know, my boss at the Times of Israel, David Horowitz, the founder of the Times of Israel, a man I have worked for something like 15 of the last 17 years. I respect him profoundly. I think this government's anti-democratic appearance is mostly folly, is mostly stupidity. thinks that this government is deeply anti-democratic and a danger to our democracy and the democracy is about to fall. I want to say that all the voices in times those are very, very diverse, and that's something that I think is very wonderful and important. The problem I have in this debate, the weakness of my position in this debate, I do think this is mostly folly and stupidity and not

actual Israel actually collapsing into a morass of anti-democratic liberalism. But all he has to do is say to me in response, when people tell me they're going to destroy democracy, I believe them. And that's it. What is my response? No, really, they're dumber than you even think. What is my response? I don't have a strong, right? And that is a microcosm of the broader Israeli debate. The right is doing, the political right is behaving in a way that they're, they've kind of run out of excuses. What is the argument of the conservatives in Israel? Don't believe the right wingers because they're idiots. But democracy isn't collapsing. What's the argument of everyone else? Maybe we should believe them. And democracy is in danger. This episode is brought to you

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All seamlessly integrated. Go to Squarespace.com slash dispatch for a free trial. And when you're ready to launch, use offer code dispatch to save 10% off your first purchase of a website or domain. Maybe it's Maybe it's Maybe it's an iconic piece of music. Hit the check. Everyone in the studio that I worked on this jingle with all had like childhood stories, or memories. Yeah, we're around either watching these commercials on TV

or sitting with our moms while they were doing their makeup and it became really personal for us. Maybe it's Maple Lane. One thing that's remarkable about the current state of the protests against the overhaul is that they've drawn a lot of support from volunteers, in both the military and the police

to the extent that you find right-wing members of Knesset criticizing the military leadership and some police volunteers have actually been booted from the force that's not having people from these institutions being involved in political demonstrations

is not completely unprecedented in Israel, but I think the scope is. Can it give us a little context? I think that what you're referring to has been the most dramatic, the most painful, the signal of how dramatic this really is, how much of a fracture this has created in Israeli society. We're talking about several thousand reservists. We don't know quite how many.

There have been all kinds of different petitions and letters and claims and arguments. Some people use the number 10,000. The point isn't just that they're 10,000. the Israeli army and the reserves is, I don't know the numbers. And I think the numbers are a state secret and nobody tells them to me. So I can feel free to just say numbers without worrying that I'm violating a state secret. But, you know, a million, let's say, right? The Israeli population is 9, 10 million and our military reservists are people who came out of the draft service of two and a half years or three years or two years.

Of mandatory service. The mandatory draft, depending on who you are and then do 15, 20 years of reserves. And so it's an immense army in that sense. Most of it is civilian reservists, but still it is in a war immense. And so even if it's 10,000, it's not much. But a lot of them are from the very elite units, pilots. If we lose a thousand pilots, our Air Force doesn't fly. And there have been suggestions that there is some large scale of pilots who are saying,

I'm not flying if this isn't a democracy. So, you know, there's a lot to be said about this. And there's a reason this is immense and important. And I think ultimately it's not the disaster it's being painted as. I am an optimist. And I'm an optimist because I think when Israelis say I'm not going to serve, they're saying something else. They're not saying I'm not going to serve. They're using the army as a vocabulary for talking about something a little bit different.

I served in the reserves roughly until age 40. My midlife crisis began when the reserves called me and said, you're old, you're slow, you're not as skinny as you were back in as a 21-year-old infantryman, and they let you go eventually, right, at 40 or 38 or 42 or whatever, they let you go. And that's when you buy a guitar, right? That's when your midlife crisis begins in Israel. But that was one of the most important things I ever did. That was one of the most identity building.

And, you know, we all tell ourselves a story of our life's meaning. And a big part of the story of my life's meaning. was the camaraderie, was the friends, was the sacrifice, was the fact that I'm a chatty nerd and I went and served in the infantry for my country, not because I good at it. Surprise the infantry took me, but because that's something very important for me to do. So when you have reservists coming forward and say, and by the way, the people who are saying this are elite commandos, they're Air Force pilots, these are people who do a day a week for 15 years of reserves. This is, by far outside of their families, the most important thing in their lives. And they're coming forward

and saying, I'm not flying in a dictatorship. Leave aside for a moment the question of military readiness. That's a really important question, but I'm going to let the generals worry about it. I don't understand it. What are they saying? What are they actually saying? If Chesbala, Nasrallah, Nasrallah over in Lebanon has 140,000 rockets aimed at our cities. If those 140,000 rockets fly and we have a massive war with Iran on five fronts, are they really not going to fly? I don't believe that. I don't believe that, and I don't believe they believe it,

and I don't believe they expect me to believe it. What I think they're saying is, hey, right-wingers, people advancing this reform, you think you're advancing something that's a clever argument about judicial activism. think you're pushing something where you start with an extreme position because that's how negotiations work and don't understand that you're losing the basic trust you need to advance this complicated thing that carries real risks and dangers for the rest of us. Hey, dear right wingers, you're breaking something big. You are breaking something real. Pay attention. Develop a theory

of mind of other Israelis. Don't look at other Israelis as things to mock, as things to joke about, as people who are foolish, you are doing damage here that you can barely see. I think that is what they're saying. When you're saying that the right needs to develop a theory of mind of these people, it's partly because a lot of these reservists, a lot of these lifelong citizens committed to their role in the military

are left-wingers. They're left-wingers. The Israeli right has spent 30 years talking about themselves as authentic and committed and devoted and, and Benjamin Netanyahu has had these campaigns. Back in the 90s, he had a campaign that Benjamin Netanyahu is good for the Jews. That was his campaign against Shimon Peres back in the 96th election. You understand what the campaign is, right? If Benjamin Netanyahu is good for the Jews, the other side isn't good for the Jews. He is recorded telling rabbis during campaigns, the other side, they forgot what it

is to be Jews. The right is devoted and the right is patriotic and the left is not. And even more so in the past 10 years under Netanyahu's government, the word leftist has basically become a slur, something tantamount to a traitor. Yeah, or worse than traitor. You know, fool, idiot, right? Because there was this great vision of the Oslo Peace process that ended in rivers of blood. Yeah, there's that old thing by Talleyrand. It was worse than a crime. It was a mistake, right? Or something like that, right? But, you know, there is this right-wing political, polarizing politics that I think we're reaping a little bit of the whirlwind of it. One of the things we are discovering in this process, one of the things that the center left,

the liberal half, the secular half of Israel is probably the most accurate way to call them, has shown now to the Israeli political right, is that they're massively overrepresented in the army and in the most strategic parts of the army and in the parts that demand the most sacrifice. We have secular cities like Rana, if you're not Israeli, you might not know what those cities are, but those are important large suburbs of Tel Aviv, mostly secular, where the rates of young people going to military service are 90%. Left-wing Israelis, center-left Israelis, liberal Israelis, secular Israelis, serve in massive numbers. It is the normative experience. This is, you know, it's such an interesting thing. If our audience is American conservative listeners,

imagine the left, okay? Imagine the left. Where most serve in the military, and when the military can no longer make you serve, they volunteer. And the most important thing in their lives is their devotion to that military service. Imagine the left, by the way, the Israeli left has very large families. It has the highest birth rate of any developed nation. The Israeli left is an American conservative fantasy. That is an important thing to convey. We are a different country. The terms mean different things. And so when the Israeli left says you are breaking something deep, you are breaking our solidarity, our shared country, our shared sense of solidarity, by playing fast and loose with this constitutional order. It's not about the idea of reform itself. It was about the substance of the reform itself in the sense that it convinced people that it wasn't a judicial reform. It was a war on democracy. This government has squandered an immense amount of political capital. The people who are being lost, those protesters, that right-wingers easily sort of scoff at and dismiss as anarchists and all these other things and funding from abroad as though any side of the Israeli political system isn't massively funded from abroad, right? But that's scoffing. They're losing patriots, deep patriots, the likes of which don't really exist in the West at that scope, at that scale, in terms of that scale of a society. It's really important to say the left is not the only part that serves in the military. Most Israeli communities serve in the military. Most Israeli political identities serve in the military

in fairly large numbers. But the left probably leads. And so what are they saying when they're saying I'm not going to serve? Are they genuinely saying that this country that still has enemies that threaten it existentially is not going to enjoy their defense when the missiles fall, that their kids and grandkids are not going to be able to sleep at night because they know their dad's in the air taking down the missile batteries, of course they're going to set. And by the way, August is just beginning. There are several rounds of draft every year to the military. We're going to watch the numbers for August. And we're going to look very, very carefully, especially at secular cities. And if we see a decline in draft numbers that is not explained by, you know, whatever blips in

statistics or birth rates or whatever, if we see that decline, then we know that the break is real. I am wrong, and these reservists, we're not kidding. And if we don't see that decline, then we know that they're using that threat as a vocabulary. It's like when, you know, I have four kids. Sometimes my kid comes to me and says to me, I hate you, and he hits me. I mean, he's six, just to clarify. He's not saying I hate you. He doesn't mean, I hate you.

He's saying, please notice, I am in pain. And you're not noticing, and that's causing me a sense of betrayal. He's saying a lot of things, except I hate you, everything but that. But he's using, I hate you as a way of saying all those other things. They are saying you're destroying our solidarity. And the only way they have to say it that the right will listen to and understand that there's a real crisis is that threat. And that's what I think is happening. I hope I'm right.

Will this be enough, though? Because if we are at a constitutional moment, then we're back to facing, perhaps with heightened contradictions, the embryonic conflicts of the Israeli identity from the hyper-religious to the hyper-secular, from the super-insular to the pluralistic and cosmopolitan, and that's without even bringing the Palestinian question into all of that. If that's what's really at stake, what can Netanyahu even do to achieve some sort of reconciliation,

let alone regain trust? I think what he does to do is recognize the other side, see it. have what you know what psychologists call a theory of mind of the other side understand the deep things are happening on the other side as well not just on the right we have i think a very unhealthy political right it is a political right that is constantly convinced it is being victimized it's in power for most of the last 40 years but doesn't do it there's a wonderful little example of something that just happened with the supreme court of israel over the last year or so the israeli supreme court has given its permission for the israeli

government to demolish this tiny little Bedouin hamlet of, I don't know, 150 people or so on Road 1 between Jerusalem and Jericho. It is a West Bank Palestinian hamlet. These are Bedouin or not. They carry Palestinian IDs. They're not Israelis. They do live next to settlements and they live in a part of the West Bank under Israeli control. And the Israeli government has been pretending to want to demolish it for 14 years because there is a group of settlers who are demanding to remove that hamlet, which is built illegally. I don't want to get into the details of that, but I don't think that's a reason to remove them for various reasons that we can talk about. But the Supreme Court has given permission to the state to remove that hamlet. And for 14 years,

the state has said, I'm trying, I'm trying, but the court won't let me. And now they got permission, I think two months ago. And an astonishing thing happened. Suddenly, the representatives of the state came to the court, in the courtroom, on television, and said, we need to have a conversation behind closed doors with the cameras off. And the justices said, why? And they said, because they're elements of national security involved. And the justices said, they're elements of national security involved? You haven't mentioned them in 14 years.

And then they did it. They went behind closed doors. And I can tell you what the state said behind closed doors. What it said was, removing this hamlet is going to cause a, a diplomatic nightmare, and we don't want to do it. And the court says, so say it. Say you don't want to do it. Well, they can't say they don't want to do it because the right-wing activists will say, ah, how could you write? The government needs the court to say they can't do it so that the government doesn't have to take responsibility for a policy, for making a policy

choice. It has right-wing activists that want one thing. It thinks that the right thing for Israel diplomatically, maybe the moral thing. What do I know? You know, they won't I'll speak publicly about their view. They don't want to do something. They have been relying on the court. And the worst thing the court did to them was let them do what they want. So there's this culture of irresponsibility on the Israeli right that runs deep and is at the highest levels of government. I remember this argument being made in the past.

Maybe it was even former Justice Minister Donald Friedman, who was a very early critic of the all-powerful judiciary, saying that the strength of the Supreme Court gives cover to extremist governments, basically LARP at passing crazy policies that they know are going to be reined in by the Supreme Court, by the adult in the room. Yes, and that is a lot of the dynamic, a lot of the dynamic. And that has produced the leadership. What, you know, there's a debate over is Benjamin Netanyahu maliciously anti-democratic, as the left says, or the center left, or the opposition says, or is Benjamin Netanyahu weak? And the other parts of his government are driving some of these things, right? That's the debate. I think that Benjamin Tanyahu is a lot less than he's being

made out to be. I think that Benjamin Tanyahu is turning out in this moment of deep crisis to be a little bit pathetic. Take responsibility. Give us a story. You have a country in crisis. You have had something like one in three Israelis in the streets protesting over the last seven months. This is a moment that matters. The country that comes out of this moment will not be the same as the country that went into it. Frame it for us. Abraham Lincoln didn't just give the Gettysburg address, but wow, did he give an address? And he framed the war, and he framed the sacrifice and the pain. Frame the moment and do the things that everybody, it's not like I've said something that I have a lot of friends on the right. I have a lot of friends in that intellectual right wing

click that helped create this reform who are horrified in how the government ran it. And I say to them everything that I said to you, they basically agree with. They're as embarrassed by all those pieces of crazy legislation as, as anyone. Get up and take this moment by the reins and frame it for the country and send it on a better path to building new institutions and building the country, the democracy we do need. Because the democracy we've had until now, this, you know, slap dash, fly-by-night system, which had good reasons, cultural reasons, sociological reasons, even political ideological reasons for actually being formed in this way, but they don't work anymore.

The country is bigger. It's more complex. It's wealthier. It's just more complicated. It's not working anymore. So give us that moment. And he can't. He can't. He can't even show us that he understands the importance of this moment. I think if you're a conservative, I think if you're a right-winger, you should be deeply disappointed by the Israeli rights political culture right now. And yet you're optimistic. And yet I'm optimistic. Yes. I'm very optimistic. I'm optimistic for two reasons. reason one is this was always how this was going to go. I don't know if that makes sense. We had this incredibly unhealthy system, this way too powerful court and this executive legislative that unified kind of thing that was way too powerful. Not a good system.

We needed to fix it. We needed to have the constitutional moment where we understand that it's breaking and it we fix it. Well, how is that moment going to look? It was going to look like one foolish radical trying to shove down the country's throat one solution and then the country stepping back and saying, holy mackerel, we need a better solution. That's what it was going to look like. And that gives me a little bit of confidence that maybe this isn't the catastrophe and the collapse that we think it is or that so many think it is. And the second reason is look at the response. The response.

is astonishing. We have a response from the opposition. The Israeli left has a very clear trajectory and sort of intellectual history. The Israeli left used to be socialist. I don't mean socialists like as an economic doctrine. I mean as a civic religion. Socialism was the meaning of the Israeli left that founded Israel. And then they built this incredibly planned and controlled economy because they really were East European socialist in many ways. They were pro-American. They were pro-Western, so we never fell into the Soviet orbit, but ideologically in terms of economic ideology and the vision of a just society, they were East European socialist. And all of that collapses just horribly in the 70s and 80s. When Israel enters a period because of the massive

power of unions and the massive power of state-controlled industries and all of that, the Israeli economy collapses. And we enter eight years from about 77 to 1985 of triple-digit inflation. We cancel our currency twice in those years. Everybody's life savings are wiped out. It is a trauma. And nobody is a socialist at the end of those eight years. And the left loses its socialism. And just in time for the left to find a new identity, a new civic religion, we have the peace

process. The first intifada begins in 1987. The outreach from Rabin to Arafat is in 1982 in that election, after that election. And then we had the Oslo peace process that collapses in rivers of blood. in 140 suicide bombings in the second and defat of the begins in 2000. And the left once again has lost its civic religion. And for the last 20 years, the liberal half of Israel has essentially walked away from politics. It has no story.

It has no belief. Well, guess what? Yereef Levine. The justice minister. Back in January, suddenly handed the Israeli left a new civic religion. And it's back. And it's back in immense power. And that's a good thing.

And that's a good thing for the right. Because the Israeli political right has been taken over by Ninkampoops, essentially because it can't lose an election. And if you can't lose an election, you become something pathetic. There's no competition. And now there is competition. And suddenly we see Netanyahu trying to convince the center of the Israeli political system that this government isn't crazy.

And suddenly the government is having to reign in Ben-Vir. And so there is this blowback. that has recreated almost, a two-party system, arguably, possibly, maybe. I don't know, but it could be. Imagine in America, every third American for 30 weeks straight protesting. And by the way, not one person killed, not one person wounded in any meaningful way. Welcome to a democracy that if it's falling, it's falling magnificently. I suspect that it is finding its way.

It isn't falling. It's growing up. What had existed in Israel until now wasn't good enough. And now we're going to build something better. I wish we had a better leadership because then we would be building it quickly. It looks like we're going to have to build it slowly, despite our leadership, instead of quickly because of our leadership. Kaviv, thank you so much. Thanks for having me. You know, I'm going to