With Netanyahu’s government finally formed and protestors taking to the streets in Tel Aviv, we turn this week to a conversation I had with Michal Cotler-Wunsh, a jurist and former member of Knesset, and hear her take on Israeli society, the judiciary and Israeli democracy.
Our conversation turned to the opening words of Israel’s Declaration of Independence and the responsibility of the Israeli public to continue the work that started nearly 75 years ago. The work is not to build infrastructure, but to build on the values and morals and mission that started with the Declaration of Independence.
Michal was born in Israel and grew up in Canada. She received her LL.B. from the Hebrew University of Jerusalem and her LL.M. from McGill University in Canada. Michal was a Member of Knesset, serving in Moshe Ya’alon’s party and later Benny Gantz’s party. She is also a legal advisor working for the return of deceased Israeli soldiers and citizens being held in Gaza.
Michal’s is an optimistic and powerful Zionist voice, deeply committed to Israel and Jewish peoplehood and Israel’s standing in the family of nations.
The link above will take you to the full recording of our conversation; below is a transcript for those who prefer to read, available to subscribers to Israel from the Inside.
I have the pleasure of sitting with someone for whom I have an enormous amount of respect, who I think is somewhere along the political spectrum around where I am. But we're going to find out soon enough. Michal Cotler-Wunsh is an Israeli politician, a woman who grew up as a young girl in the world of Israeli politics. Your mom was secretary of Gahal, Menachem Begin's party. You grew up in the Menachem Begin’s lap almost, and with his wife playing piano lessons for her and all of that. Your father, Irwin Cotler, is one of the really great champions of human rights, a Canadian lawyer, but really one of the world great champions of human rights and obviously a huge advocate for Israel. So, you grew up in a home that is deeply committed to Israel, that is deeply committed to fairness and liberalism in the real sense of the word because Menachem Begin people think of as a right winger, which he sort of was but really wasn't. But he was a liberal in the sense of the philosophical sense of liberalism, human rights, human dignity, fairness and so on and so forth. And that's the world that you grew up in. And then you make your way into Israeli politics. You've been in the Knesset, you were in Benny Gantz’s party, and before that where you were in Moshe Ya’alon’s party. And I think of both Benny Gantz and Bogie Ya’alon, also as centrists. And so, we're having this conversation a few weeks after the Israeli elections as the new government is coming to be. And there's a lot of histrionics in the Israeli press, there's a lot of histrionics in diaspora communities about the end of Israeli democracy and all of that. I'm not happy. I'll just put that out there. We'll hear what you think. I don't know what you think yet. But before we get to that and what's actually going to happen and if we're happy or not happy, what we do about it, I want to first ask you, beyond thanking you for being here, to reflect a little bit on where we are, how did we get to where we are? The numbers of voters on each side didn't change all that much, almost minuscule amounts. But leaving that aside, there is a new phenomenon in Israeli political life. It's a Smotrich phenomenon, it's a Ben-Gvir phenomenon and all of that. Does it say something about Israeli society? Is it an accident?
So, first thank you in advance. And what do you think?
So, first of all, thank you for having me here. It's really a pleasure to have the opportunity to engage in conversation with you for whom I have tremendous respect and with your audience and whoever is listening to us and engaging in these thoughts. And I think that that's a tremendous source of hope for me to know that there are people around the world that are not only listening to you and me speaking but are actually thinking about these issues. I think that that is key. Look, the way that I put it very often is that we are in the midst of a process. We're far, far from being done in what I regard as an incredible democratic process in a 75-year young democracy, an ancestral homeland to which an indigenous people, Jews, returned after millennia of exiled persecution and a non-practiced muscle of sovereignty and democracy. Founded upon the principles anchored in the Declaration of Independence. So that mouthful that's the Declaration that says being the nation state of Jews and indigenous people returned to their ancestral homeland after millennia of exiled persecution committed to equality. And I believe that the word equality appears seven or nine times in the Declaration of Independence. So sometimes we sort of… we use loosely Jewish and democratic. I use the Declaration of Independence as my anchoring sort of solid ground from which to begin the conversation. I'll share anecdotally that on the last day of the 23rd Knesset of which I was a member, as you mentioned, I actually was prepared to submit my basic law - Declaration of Independence because many may not know, but although its spirit sort of hovers around everything that we do, legislatively and otherwise. The Declaration of Independence was actually never anchored in law or into law.
But it's been used in certain Supreme Court cases like the Alice Miller case and the Kol Ha’am case. There are cases where the Supreme Court has quoted it and cited it as sort constitutional because we don't have a constitution. But it's not law. Right?
That's right. It isn't law. And in many ways, I believe that the response from which we have to begin engaging in the threefold challenges that we face at 75 years young, not only in terms of Israel's internal resiliency, of which the result of the last election was about in one manifestation and of course, having five elections and three and a half years is another. But also, in Israel's relations as a nation state, as I mentioned before with global Jewry. Also, what troubles me, and I've written about and researched academically, is Israel's standing as a member and a family of nations. So, the intersection of that threefold challenge actually begins the conversation with the Declaration of Independence. And if you ask me why it is or how it is that we got to where we are and how that relates to being mid process, it's that whereas the founding mothers and fathers 75 years ago began to build the physical infrastructure and it's beautiful and it's incredible and we drive through the country and maybe in some ways think we're done, but in many ways we are still members of that founding generation having a responsibility to build a much more complicated tier. That next tier of call it values, call it morals, or that next tier of what does it mean and how do we interpret everything that I said in that mouthful of the Declaration of Independence stipulated anchored as our solid ground?
Let me push back for one second. I mean, I love this, but somebody might say, unfairly because you're not finished, but nonetheless, if you read Arthur Hertzberg's book “The Zionist Idea” or you read Gil Troy's version of it, kind of reviving it, “The Zionist Ideas”, they would say that 100 years ago that was a robust Zionist conversation. It was all about morals; it was all about values. It was about Jabotinsky’s seven “mems” about all the things that a country owed. It was about Ahad Ha’am earlier. It was about Ahad Ha’am versus Herzl, state versus spiritual reservoir. So, somebody might say to you, we actually started with that. Why did it die?
First of all, it is so far from dead, right? It's not only not dead, but it's our, in many ways, a misunderstanding as humans that when we've built that physical layer that I sort of described before, and indeed this country is incredible in terms of how it's grown in those 75 years under stress and under challenge and under continued war, it is actually the idea of Zionism that needs to be emancipated to address that threefold challenge.
Emancipated from what?
From the place in which it's appropriation in the challenges that we face internally, and by the way, I'll get to that I wasn't avoiding the Smotrich, Ben-Gvir stuff, but internally in the understanding that there is a war waged on Israel's identity. Is it what it was founded to be? We can call it Jewish and democratic, that mouthful of the Declaration of Independence.
Even though democratic is not in the Declaration of Independence.
Exactly. So, I'll say it again. Nation state of an indigenous people returned after millennia of exile and persecution committed to equality. Is it that or is it a democratic state of all its people or is it a Jewish halakha state?
Right. A democratic state of all of its people means a Hebrew speaking Spain.
Exactly right. Which it was not founded to be. And the goal of actually submitting that basic law- Declaration of Independence was to say, look, you can change vision, mission, values. I mean, companies do, individuals do, perhaps even countries do. But you can't do it without telling anybody.
You can't do it without putting on the table that we are rethinking our vision or our mission or our values. And so long as and the importance of anchoring the Declaration of Independence is actually to say, five elections in a row in three and a half years and their results indicate to me really, really good news. The majority of Israelis are majority moderates. The majority of Israelis actually have very little daylight between their ideologies. How do I know? Because the numbers prove it. What we do have is over time, this almost ignoring or not acknowledging the war for Israel's identity and a constant sort of nod away at the premise that it was never founded to be neither a Jewish halakha state nor a democratic state of all its people.
So, who's the war between?
So here I think and if I go back to the idea of emancipating Zionism, I think that Israel's very existence and that's where the majority of Israeli public certainly post Oslo, and you mentioned having entered politics with Bogie Ya’alon who actually made his own sort of political movement somewhere along the old school political divisions. I also think that the old school political divides of what we think of as left and right, left and right economically was when the country was founded, then left and right became are you for Oslo or you against Oslo, that was left and right. And I would sort of put it out there and submit that the left and right that we think of today are actually yesterday's delineations and are irrelevant. And we need to be very clear about the fact that there is this majority moderate and then there are extremities and what's happened in social media and so on and so on is and the Knesset and it's playing out in politics. And in many ways, if you ask me, then Smotrich and Ben-Gvir are actually the mirror image of Tibi and Odeh or Ofer Cassif.
All of them are on the far left just so our listeners know.
And it's very important for me to say not only again, it's not about the left- right divide it's, do you accept the shared premise of Israel being that mouthful of the Declaration of Independence, the nation state of the Jewish people and indigenous people returned to the homeland, after millennial of exile and persecution, committed to equality? Do you accept that?
Right. So, when you said Odeh and Cassif, just to give our listeners some background, you're talking about people who are arguing both in the Arab community and in the Jewish community that Israel should not be a Jewish state, it should simply be a democracy. Whoever lives here, lives here and we’ll have a lot of Jews.
Precisely.
And the other extremists people who are saying in order for the seesaw to balance I understand you to be saying is if that's what they're going to say, then I'm going to push really hard and make it sort of hyper Jewish so that the balance somehow becomes this mass majority in the middle that want something else. Is that where we're headed here in this argument?
Maybe I would put it a little bit differently. And that's to say as actually a person who has dedicated a lot of her writing to identifying and researching double standards in the application of international law, of universal principles of human rights and so on, you can't apply principles selectively and expect them to hold up. It's impossible, right? You tell a six-year-old, these are the rules of the game, you're going to play by the rules of the game and I'm not. And the six-year-old will say that's not fair and I don't want to play with you.
And they'd be right.
And they'd be right. So, if for a long time and it's a long time, we've sort of ignored the fact that there is a consistent sort of understanding and I alluded to it before, by the way, it has nothing to do with Jews or Arabs or any other religious or ethnic or cultural belonging. It actually has to do with the shared principles upon which this country was founded. And I'm not going to repeat the mouthful of the Declaration of Independence. If we've allowed that to continue festering, ignoring it or turning a blind eye to it or even, I'll say, applying a bit of a racism of low expectations, saying what do you expect? You can't really expect anymore. Look, as a Canadian and I'm both as you mentioned, I know that those that emigrates to Canada, including my own husband, have to, after several years of residency have to actually well in Canada's case, swear their allegiance to the queen. That might be funny for some.
Not anymore.
Right, not anymore. It's allegiance to the king. And, of course, have a representative in the Attorney General in Canada or, you know, what was our relationship with the Commonwealth and sing “Oh Canada”, which made my husband very, very, very nervous because he's got a very poor voice. And accept certain elements of citizenship to a country. And that's in a country that was founded to be a democratic country of all of its people, with multiculturalism as its flagship.
And you still have to declare allegiance to it.
Exactly.
You know the word allegiance can sometimes…
Or loyalty…
I say belonging, okay? I say a sense of belonging. We live in a generation, and we'll get to the hopeful part in a moment, but we live in a generation where people are very, very in tune with their own identity and with a right to actually self-define.
Right, define your own gender, define your own community. Your body doesn't even define you anymore. And I'm not saying that in any way derogatorily. I'm just saying that it's really all about how I define myself.
And if that's the case, then it's unacceptable that everybody in the world gets to self-define except for, and here we come back to Zionism, except for Zionists, who happen to be the majority of Jews that self-define as Zionists.
In Israel or in general?
Around the world. So today we know to say that in North America, 85% of Jews self-define as Zionists.
They do?
Yeah, absolutely. I know that. I can send you the data. It's an amazing misunderstanding.
What percentage of American Jews, let's say 35 and under self-identify as Zionists? I'm curious.
I don't have the breakdown of the statistics, but I'll say something about it with a bit of our obsession with it.
Okay, I'm not so obsessed, but okay.
It’s legitimate for Jews of all kinds to say, you know what, I don't self-define as Zionist.
100% I completely agree.
And even if there are 5% of Jews who self-define as Zionists, and there is an overwhelming majority, so that is not the case, but even if there were, there is no more legitimacy for a Jew to say, you know I'm just going to shed that Zionist pound of flesh. Although the word Zionism, that 140-year-old progressive national liberation movement, was predicated, of course, on an integral part of our identity, of our ancestry, of our heritage, of our culture, the word Zion indicates it. And when you see Jews that prayed and longed for Zion or the return to Zion from Ethiopia, for example, you recognize that here we are once again misunderstanding the appropriation of the term Zionist.
Okay, so I want to push you back, though. I agree with you completely, by the way. And I think if the foundational document of Israel is the Declaration of Independence, and the foundational document of the Jewish people is the Bible, and it's a separate conversation altogether, but you know if somebody says to you on a Shabbat afternoon, you know, you should really read this book. And you say to them, oh, what's it about? Right? So, we say to people, the Bible is the foundational document of the Jewish people. Somebody should say what's it about? We never really talk about what Israel's about. We never talk about what the Bible is about. And I just want to put it out there for our listeners, I think one can read the Bible as a love story between the Jewish people and the land of Israel.
By the way, not only do I agree 100%, but Ben-Gurion came to Lord Peele with the Bible, right? Like that mouthful that I said about the Declaration of Independence, it's predicated upon the understanding. So even the use of the word an indigenous people return to ancestral homeland, that's the point that he had made. And it did not matter that he was an ethicorus, that he didn't believe in anything.
Ironically, though, these Zionist people didn't believe in anything, but they did believe that the Bible was proof that God had given the land to the Jewish people.
So, in many ways, whether God was in the equation or not, it was about the history of Jewish people.
Fair enough.
That millennials understanding that this is a part of your identity, of your ancestry, of your heritage, of your culture and of your faith. If you so believe. That's the multiplicity of the identity that Jews who self-define the Zionists, or, by the way, those who are perceived to be Zionists because, let's say they're visible Jews, so they're assumed to be Zionist whether there are or not. I agree with you 100% that the understanding that there are things we haven't spoken about yet and these are the things we haven't spoken about. And actually, what we should be talking about right now. Because the festering issues are not getting any easier. And that includes all of the issues of what does it mean to be Jewish and democratic…
And are you saying basically to go back to our fundamental question, that this unanswered set of questions is what leads to the phenomenon of Ben-Gvir and Smotrich?
No, in many ways I’m saying that the fact that we have enabled it to fester, and I mean, there's an elephant in the room that we haven't touched on of course and that's the personalization of the process that we've sort of undergone in five election campaigns. And if you ask me the biggest failure of including the party that I was a member of and actually chose not to continue running with…
You’re talking about Blue and White, Gantz’s party?
100%. And not only is this true for Blue and White, but it's true to a much larger degree of Bogie Ya’alon of Telem, the party with which I began and joined Blue and White. And that is the understanding that above all else, what, five election campaigns, although they didn't put it on the table and didn't share it with the voters. And I'll argue that the Israeli public is a very politically savvy public and understood this without being told it is one question and one question only- Yes Bibi or No Bibi. And that is the failing of the parties that I was a member of, that I entered the coalition government with. And I will also argue, and my last conversation with Bogie Ya’alon, when I decided that I was joining the unity government with Blue and White, I implored with him and of course with the Yair Lapid to join that unity government. First of all, because that was the result of a democratic election. That is what that majority moderate, that public was saying to its elected leaders. It was saying, work it out, this is not kindergarten. On major issues there was no daylight between all of you, and we expect you to now look at mental health and look at real health. I remind us that we were sort of at the beginning of the peak of COVID right at the time when we entered the government. Health, mental health, education, long term planning for all the issues that COVID didn't invent, but it's certainly exposed, it certainly magnified the decision at the time not to enter that unity government from my former party leader Bogie Ya’alon, and Yair Lapid, the leader of Yesh Atid, in my view, was actually the beginning of the end of that government, of that unique unity government being able to survive to the extent that I'll share anecdotally. The first thing that I said to my staff when we entered Knesset is every day in this Knesset is going to be like our first and our last because there is no stability to this government. There was no way that you could create a parody government with a parody government unity organizational structure when you have 14 MKs. By the way, the reason that I entered is because those 14 MKs have become ministers and we had to pass what’s known as the Norwegian Law so that the next MKs would enter Knesset to actually do the work, the very important work, which we will talk about, too, in a moment, the very important work of Knesset, of the legislative branch, which has become so weakened. And it's not just the role of the legislative branch to legislate, but it's the role of the legislative branch to supervise the executive branch that's become so weakened in that checks and balances between our three branches of government.
I want to push you back before we go there, though. People are listening and they're saying, okay, she's a moderate, she's a she. They may be Googling you as they're listening. You're certainly not on the religious right, to put it very mildly. They may be saying, “she doesn't sound that upset about this whole Ben-Gvir- Smotrich thing. This guy has given her all these slow pitches to talk about how this is the beginning of the end of Israeli democracy and these people are despicable and yada, yada, yada, and you're not going there”. So, if you had a thumbnail it and people are scratching their heads saying, “How is Michal Cotler not despondent about these people?” Why are you not despondent before we get to what it means and all of that?
I believe in the Israeli public.
And they voted to say what this time?
They voted to say, our personal safety is compromised, and you're not looking at it.
Compromised in what way? Outside, inside?
Inside. Our personal safety in the streets. Our personal safety. We're forgetting what happened here in Operation…
Well, in May 2021.
Yes, thank you. In May 2021.
And in the Galilee and in the Negev with the Bedouin.
Yes, and in what we called mixed cities, which by definition, I don't even like the fact that we use this term because every single city in this country, as you well know, is a mixed city. There is no differentiation in anywhere between the ability to walk around freely and to shop freely and to work freely of Jews and Arabs alike. And so, the understanding that personal safety was compromised…
And nobody else was talking about it.
Nobody was talking about it.
Nobody was talking about it except for Ben-Gvir and Smotrich.
Thank you.
Okay, now let me just push it again to you because I really want people to understand this. So, we have, first of all, and I think people outside the country just don't really understand it. We've done some podcasts on this and we're doing more talking to people from the Negev who kind of describe what it is that is really going on in the Negev, which is a loss of sovereignty in certain parts of the Negev and not small parts of the Negev. And certainly, Ben-Gvir and Smotrich, which are the only ones talking about that. And then you're saying basically the left and the middle turned it into yes Bibi or no Bibi, they turned it into a referendum on Bibi. So, we've now had five referendums on Bibi and didn't offer any other platform, vision, issue that people could get excited about, passionate about.
Right, and not Bibi is not a vision.
Correct. So, you have no vision versus a vision. And a vision that some people might like in some ways.
And I'll say it's not just a vision, it's an acknowledgment of a pain point. It's an acknowledgement of a pain point so the moment that you've acknowledged the pain point, then you've already sort of given the hope to whoever it is that feels that pain point that someone sees them. And the other thing is, just like in every other democratic party, these were democratic elections. And with great humility understanding that the state of Israel is nearly 75 years young, and its democratic processes have enabled it to avoid civil war, which most other democracies in one way or another have had play out. So, when I go back to the answer to your question, why am I not an alarmed? And I'll go back to my answer- I believe in the Israeli public very, very deeply. I think that there is an incredible, as I said before, politically savvy, dedicated, committed population that actually, in many ways, around each of our dinner tables, Shabbat tables, if we have shabbat or any other kind of table has this very, very diverse representation of what Israel is today and in many ways represents what that Declaration of Independence sought to do, which was become that home, that return. And on the other hand, that comes with the tremendous responsibility of that public.
Right. So now I want to talk about responsibility of the public and responsibility of the government. Some people think this government is doing such crazy things like splitting ministries, right?
The government that doesn't even exist yet.
Yes, we should just point that out at least that at this conversation it’s government that doesn't exist. Okay, but it will exist probably in the next week or two, and some people are already predicting its demise because ministries are being split and they can't work. Okay, let's say the government doesn't fall. Okay? What do you think, realistically, where we have a law about subverting the power and the independence of the Supreme Court, theoretically at least, to the Knesset, we have somebody like Ben-Gvir who is hardly understated getting control of the police in certain kinds of ways. We have Smotrich, who's hardly a pacifist, getting more control over what's going to happen in the West Bank. So that's what's in all the headlines. There was this crazy headline a couple of days ago in Israel that Israel, because of the agreement with the Haredi, is not going to make electricity on Shabbat. Of course, it's ludicrous because a country like this cannot not make electricity on Shabbat… But what do you really think we're going to see? People are saying, okay, I sort of understand what she's saying about how this happened. It happened because there was like a kind of a vacuum of a conversation about values and about positions. We're feeling vulnerable, ironically, not from Iran or Syria or Lebanon. We're feeling vulnerable inside our own country. And the only people that spoke about this were Ben- Gvir and Smotrich. And while the left and the center are saying yes Bibi, no Bibi, somebody else is actually putting out a vision so Michal Cotler is saying, okay, so that's partly why we ended up where we did. So now fast forwarding. Now they're saying, okay, I understand sort of how we got where we are. I mean, obviously, nobody's a prophet here, but if you had to rub your crystal ball, which does or doesn't work, and the government doesn't fall, and Ben-Gvir does have the powers that it looks like he might very well have and Smotrich does have the powers that it looks like he might very well have. And I want to leave Avi Maoz out of this for the time being. What do you think is really going to change? What's likely to change in Israel?
So, it's interesting that you ask that, and as you're asking that question, I was reflecting on it being actually or my response being a part of what I said about the lack of acknowledgment of personal safety can actually be utilized as an example for a lot of things that weren't acknowledged. So, you spoke about, for example, the statute of limitations for the Supreme Court, right…
Well, it's not so much statute of limitations as much as it is a kind of a judicial review so to speak right? Or undoing judicial review.
So, I touched upon it a little bit before, and my speech in Knesset actually very much sort of began to highlight this. Of course, I didn't have enough time to address it in a more meaningful way. But I will say, over time, the chipping away in that balance of power between three branches of government, of what I said before the Knesset, the legislative branch's ability and responsibility to supervise the executive branch and not be a fig leaf, that chipping away in many ways was an impetus or a catalyst for the attack on the judicial branch. On the Supreme Court and limiting its power, but not acknowledging that over the last few decades, the Judicial branch has entered into more and more and more spaces. That for whatever reason, it doesn't matter if it was because they chose to roll the hot potatoes or enable the hot potatoes to be rolled to the Judicial branch, or they just didn't know how to address the festering issues in the Knesset in the legislative branch.
So, they got addressed in judicial.
So, they got addressed in judicial review, which is what happened. Right? An individual that found a vacuum because nature reports a vacuum said, well, you know what? I didn't receive the legislative assistance that I should have from government or from parliament rather, and I'm going to take my individual case to the Supreme Court. And that's how precedent was made. In many ways making decisions for this country, not acknowledging that there is an off balance in the necessary checks and balances between the three branches of government, a natural tension between them because who doesn't want power and maximum power unless they have the power, keep the power. Not acknowledging that in many ways became or does a tremendous amount of disservice to enabling the judicial branch to maintain its power. And I think that in many ways, what we're going to see now and maybe this doesn't calm anybody is in a democratic process of, let's say, four years in a democracy where there is very clear understanding that the public will sort of hold you to account for what you've done over the last four years. Especially when the person at the helm Benjamin Netanyahu elected Prime Minister has never been anything but a centrist on all of the issues that you've mentioned and a very cautious foreign policy person. Not only a very cautious foreign policy person, but a very mindful. You know, he says of himself that he's a son of historian, a very mindful connection or link between his grandfather and his grandson. So having that kind of responsibility as Tabenkin, actually that was what Tabenkin had said to Ben-Gurion about the partitions initially or I don't remember about what but having a very cognizant responsibility to be the link between our past and our future. Call me, I don't know, innocent or hopeful or naive or an optimist and we'll talk about each of those words if you'll want to, I don't think of any of this as the end of democracy. I think of it as part of democracy. I think of it as part of the democratic process. I did say that there is a growing need for the majority moderates, and I believe this to lean in. Because if nature abhors a vacuum and what we see playing out is the extremities, including in parliament and on social media and on the streets and in many places, by the way, and in the educational processes and everywhere that there is a vacuum. What will happen certainly in a social media reality that instead of us saying we are not going to emulate the social media reality, what we see is the political, the traditional media not only emulating, but becoming trying to be better than a social media reality that polarizes, that squeezes out the majority moderates. Well, those majority moderates have an added responsibility to lean in and make sure that they are around decision making tables, not creating alternate systems to fix the infrastructure, but actually to be part of the system in the system.
In our next conversation we're going to talk about that big center majority and what we have to do to get it vibrant again and talking about values. That's another conversation which we'll do. But I just want to stick with this for 1 minute as we begin to wrap this part up. I just want to first of all point out to a lot of our listeners who may not be aware the Israeli Supreme Court is a kind of a strange animal because it's a Supreme Court like the American Supreme Court and it's also a Court of Appeals, high Court of justice and Court of Appeals. So, it plays a variety of different roles which kind of get mushed together, which makes it look even like a more activist court than it might be, and it is a pretty activist court. The other thing that many people point to is that judicial review is a very strange thing in a country that doesn't have a Constitution because you say this law is unconstitutional, but how can it be unconstitutional if there's no constitution? So, people legitimately ask so when the Supreme Court says no, we're actually overruling this law well, on the basis of what? Your kishkas? The Declaration of Independence? The Declaration of Independence maybe at certain times, but not all the times. There's too many things happening that the Declaration doesn't even begin to address. Even if it were anchored into the law, it doesn't say enough about enough things. The Declaration says nothing about the balance of religious life and secular life. The declaration of independence says very, very little, except for the use of the word equality, about the rights of Arabs to self-determination and the flourishing of their own community. There's a lot of things that a constitution would address that the declaration doesn't. And so, when people are scratching their heads, why is Israel doing away with judicial review? It's important for them to understand that some jurists who don't have a dog in this particular race say, well, I don't know what Israel should or shouldn't do, but it is a little peculiar that the supreme court can change and can say things are unconstitutional when there's no constitution.
I'll add to that having been a very young lawyer in the early 90s when what's known as the constitutional revolution was led by, I was then a clerk in the supreme court, Chief Justice Aharon Barak, who's a dear friend, who I love and respect… who is a brilliant jurist. The fact that I just said the constitutional revolution was led by a justice is problematic in and of itself. It's problematic in and of itself. We spoke about the checks and balances in a democracy and in many ways, there is still this festering sense that there was a hijacking, that the parliament didn't even know what it was voting on when it voted on those basic laws that essentially supersede or trump regular laws, no pun intended regular laws, if there is any sort of contradiction between them. I would almost bet that if he could have first passed the Basic Law Declaration of Independence as a preamble to anything that followed suit, he would have done so. And I'll say one more thing, and maybe now that I'm a little older than I was in the early 90s, anything that you coin or view as a revolution is bound to have a counterrevolution. So, I guess I'm much more of an evolutionary gal.
So, one thing that one might say is if you just look at Smotrich and Ben-Gvir, a phenomenon starting in 2022, you pull out your hair. If you understand what Aharon Barak was up to in the 1990s, then you just see sort of a kind of antithesis and antithesis or a pendulum swinging. And this is again about that middle. The pendulum swung with Aharon Barak, the pendulum is swinging with Ben-Gvir and Smotrich, and you're saying, okay, doesn't look so good. The headlines can make you have a little bit of a headache. But when you zoom way out, the judiciary went way left, or whether you want to use left or not, it was certainly activist in a different kind of way. And what Ben-Gvir and Smotrich are saying is we want to take power back to the legislature. But what you're really saying, and this is, I think, a really great way to begin to wrap up the first part of our conversation is all of this stuff needs to be understood in context. All of this stuff needs first of all, analogies between Trump and Bibi are ridiculous for a whole array of reasons which we won't go into.
And maybe when we have our next conversation, we will go into because I think it's important to put our finger on wide and ridiculous, right?
Right. And by the way, five democratic elections, including this latest election, which maybe people didn't like the government, don't like the government that looks like it's emerging. But there’s not a peep about it not being a fair election, not a peep about it being a stolen election, not a peep about the votes having been this or that. In other words, as you've been pointing out throughout our conversation, the democracy worked. You may not like the results, but the democracy is churning right along. But I just want to sort of begin to summarize here what I think is really important. And I had no idea what you were going to say before we sat down. We didn't prepare this. We didn't prep this. It's fascinating to me for our listeners to hear a woman who is not part of the religious world, a woman who is not part of the right, a woman who is deeply committed to human rights and those values, a woman who's deeply committed to democracy, who is herself a lawyer, who clerked at the Supreme Court, who was in the Knesset not freaking out and saying, I trust the electorate. I trust Israeli citizens. I trust a lot of the leadership. I believe in the importance of and the significance of the legislative branch. I understand the history of Israel's politics not starting in 2021 or 2022 but going way back. And this is just part of a much larger process of Israel figuring out who it wants to be. And in certain ways you didn't say the following, but I'll put words in your mouth, and you can tell me “No, that's not what I wanted to say”. In certain ways, if this phenomenon, we'll call it the Smotrich Ben-Gvir phenomenon gets Israelis talking once again about the values to which we're deeply committed, then the center and the left will be the beneficiaries of Smotrich Ben-Gvir also, because so far nobody else has gotten them talking about that. Is that fair?
So, it's not only fair, but I'll say from a place of understanding, that everything that I joined parliament for was in order to ensure that from that platform we would have these conversations, the conversations we haven't had about the Declaration of Independence… and by the way, there have been so many important committees and reports submitted over time about conversion and about Sabbath in the public space and so on and so on all of those issues that have been thrown by the wayside, that is in many ways what the Israeli public deserves its elected leaders to actually dedicate their time to. And if this is a bump in the road, or not even a bump in the road, it's a part of the process. It's a work in progress. If this is a part of the process, a part of the journey, that the state of Israel, it’s not beautiful, it’s not gorgeous, but it's democratic, and it's consistent with, as you've said, and I would begin in 1948, and that's why I begin with the Declaration of Independence. But I would also look into the next 75 years and where we're headed. We're at this moment in time, and maybe in our next conversation, we can talk about that moment in time intersecting with the place in which global Jewry finds itself in a myriad of challenges internationally that actually very much intersect with the challenges that we have internally. And Smotrich and Ben-Gvir also a symptom or a response to that, which we'd be foolish to ignore. We'd be foolish to sort of sweep under the rug and hope it goes away. And that would be, again, once again, the sort of analogy that I drew before about personal security. We can talk about collective security or the safety of the Jewish people and how we see that play out in what we see in Israel as well.
And what we see in the rest of the world as well.
100%.
Because Jewish security does not look now like it did 20 years ago.
That's right.
We'll talk about that next time. Well, this is unbelievably fascinating to me because and I don't know what people think, but I just hope people can sort of as they're listening… running, walking, driving, I hope this is calming. Whether they agree with you or me or I didn't really put out my views, but whether they agree with any particular view, to understand that there are people here who are jurists like you who clerked at the Supreme Court who are incredibly smart, who are not part of the Ben-Gvir Smotrich group, but are looking at this and saying, this is a process. This is a democratic process. This is what happens when the center on the left don't talk about ideas. This is what happens when Zionism needs to be kind of, as you said, be either emancipated or reclaimed as a conversation about what should the Jewish state be? We're finally having that conversation. And it may not look great on the headlines each morning, but something very powerful, very important, something critical to the future of the state of Israel may have just been born, even though people are pulling their hair out about it.
And I would ask all of those people listening to us to afford Israel the very same luxury that they afford their own countries. So, apply the same single standards to understanding that democracy is not a simple task, and all democracies are still continually working things out and so is Israel. No more and no less, no different, and not exempt from having to do it.
And let's just talk about the Americans for one second. People who were not happy six years ago when the elections went the way that they did, most of those people did not say “American democracy is over, I'm done with America”. They rolled up their sleeves and they laced up their boots and they said I'm going to make sure that the next election ends differently. Which it actually obviously did. There was very few people I know who said America is a failure. America's done. They said America may be wobbly in certain ways, but Israel, they're saying is done and America needs work. And what you're saying is that's not fair. If America needs work, then Israel needs work.
It's not only not fair, it's those good old double standards said before I'm committed to identifying and combating in so many sort of dimensions of applying double standards and the understanding that when you apply them, the entire infrastructure collapses. So, what's true for Israel is true for every other country. And I'll say, just as we sort of end this piece, the one more sort of important notion to entertain is the fixing or the leaning in that you mentioned or the rolling up our sleeves that's all of ours together. This is a nation state of a people, indigenous people returning to ancestral homeland. The luxury of disconnecting is just not ours to be had. By the way, historically we know that it's not ours to be had. And we know how that ends, not well. And then I end with that piece, and you mentioned it before of why I'm not in complete panic mode. The late Rabbi Sacks differentiated between optimism and hope. And he said the following he said optimism is the belief that everything will be okay. Hope is the belief that together we can make it okay. In that sense, optimism is a very passive virtue, whereas hope is a very active one. And it takes not very much courage to be an optimist, but it takes a great deal of courage to have hope. And I remind us all that our national anthem is Hatikvah- the hope. And so do I think that our generation has our work cut out for us? Absolutely. Do I think that we can do it? Absolutely. Do I think that it comes with a tremendous amount of responsibility? Yes. Do I think that disengaging has any part of what I've just said? No, that's not even an option. Not internally, not with global Jewry and by the way, not with the family of nations of which the state of Israel is a member of.
No better way to end this conversation. I cannot thank you enough. And we're going to begin our next conversation by talking about the difference between optimism and hope and asking what do we have to do based on the Rabbi Jonathan Sacks view of hope. For those of us in the center and those on the left to begin to engender that conversation, which we'll turn to the next time we get together. Thank you so much for your time and your thoughts.
Thank you, Daniel.
Impossible Takes Longer, which addresses some of the above themes, will be published this April. It’s available now for pre-order on Amazon and Barnes & Noble.
Music credits: Medieval poem by Rabbi Shlomo Ibn Gvirol. Melody and performance by Shaked Jehuda and Eyal Gesundheit. Production by Eyal Gesundheit. To view a video of their performance, see this YouTube:
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"I believe in the Israeli public very, very deeply"