Israel from the Inside with Daniel Gordis
Israel from the Inside with Daniel Gordis
"If the judicial review passes in this form, couldn't the Knesset, by a vote of 61, close mosques, Reform synagogues?"
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"If the judicial review passes in this form, couldn't the Knesset, by a vote of 61, close mosques, Reform synagogues?"

Or by a vote of 80, delay the next elections for fifteen years (or whatever it decided)? In this part of our conversation, Prof Koppel acknowledged that is possible, but has a response.
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Photo: http://www.ionisrael.org/issues/4.pdf

This week, we continue our conversation with Professor Moshe Koppel, Chairman of the Kohelet Policy Forum, which has been one of the primary forces shaping the proposed judicial overhaul legislation and pushing for its passage. A number of weeks ago, we hosted Professor Yaniv Roznai of Reichman University, who explained in great detail why he believes that the proposed Judicial Reform will end Israel’s democracy. This week and last are our opportunity to hear the opposing viewpoint.

As part of our conversation, I asked Professor Koppel if, were the currently proposed legislation to pass, it would be possible for the Knesset to close all mosques or non-Orthodox synagogues, with no Court to push back. He acknowledged that it could. Similarly, I noted, by a vote of 80 Knesset members, the Knesset could extend its own term as much as it wanted, and again the Courts would have no power to intervene.

Professor Koppel acknowledged that both of those scenarios would be possible under the legislation that Justice Minister Yariv Levin and Constitution Committee Chairman Simcha Rothman are pushing. But he of course knew that already, and had an explanation of why he isn’t worried.

Agree with him or not, you’ll learn a lot.

The link above will take you to the audio of the second half of our conversation. Below, for those who prefer to read, you’ll find a a transcript, which is being being made available exclusively to paid subscribers to Israel from the Inside.


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One can understand why the tens of thousands of people in the streets were saying, that doesn't feel like a democracy, feel like it's not a democracy. Right? Because the first point that I want to make is that I've heard a lot of people not you, absolutely not you, but I've heard a lot of very smart people who either on the right or slightly right of center or even in the center, say “the left is having a tantrum” or “the left is having a hissy fit”. And I find that a very problematic claim because even if I find what you're saying very, very compelling, and a lot of it I find very compelling, and I've never been opposed to digital reform as a matter of principle, just some element of it. But this is one. So, for example, if we were living in a country where effectively the Knesset could say no opening mosques, the Supreme Court does the judicial review, the Knesset overrides it, and then till the next Knesset, we now have a little bit more than three years. For three years, there could be no opening mosques, no opening churches, no opening reform or conservative synagogues, and that the Knesset could do whatever he wants. It feels very undemocratic. Or something that we discussed before we went on the air, the law on elections and voting, and the Knesset requires 80 people, 80 members of Knesset to change it. Now, I don't think Israel's ever had a coalition of 80 people. I could be wrong. I don't think it ever has. But let's just say, hypothetically, it gets a coalition of 80 people, and then the Knesset decides, and this reform has gone through. You know what?

We're not going to have elections every four years. We're going to have elections in 15 years, and then they're going to be free and open elections. Now, again, it's a kind of crazy hypothetical because we've never had a government of 80, but just anything is possible. You live in a world in which that is conceptually possible. One can understand why many of the people in the streets at Azreili or in front of the President's house in Jerusalem or even in Efrat these days feel that this feels like an illiberal democracy, right?

Well, it's only illiberal if they would actually do those things.

But doesn't one have to prepare for the worst-case scenario?

Okay, so let me answer your question in several different ways. First of all, with regard to your specific question of the override, I'm on record already as thinking the override is a bad idea. I don't want to explain right now why, because I want to address your bigger question. But let's come back to it. I want to tell you why I don't like the override. It's partly related to what you said, but not exclusively. I want to address your bigger question. Your bigger question is, wait a minute. I don't trust these guys, right? These guys who were elected to the Knesset, they look like a rowdy bunch. It might get worse in some subsequent election. It might be even scarier looking people, right? And I don't trust them. And I want to have some way of checking them. I want to have judicial review that's effective, that's going to prevent them from doing crazy things. Okay? So let me first say that that's a completely legitimate and understandable question. I completely agree with you. And by the way, as somebody who is libertarian, I mean, for me, individual freedom is absolutely the first and most important thing that that I strive for in in politics, okay?

I don't trust members of Knesset, whether they're on my side or the other side. I don't trust ministers. I don't trust anybody. People are human beings, and human beings are flawed. Their judgment can be flawed. They can do horrible things. Okay? But having said that, the question is, what are the right mechanisms for checking them? How can we do this effectively? So, we can argue this case in two different ways, both of which are important. One of them is the theoretically correct way to, you know, to ask the question, all right, what are the right mechanisms? How should we set up a government starting from scratch? And when you ask that question like Rawls, you want to be doing it from behind the veil of ignorance, right? You want to assume that you don't know who's in the Knesset or who's going to be in the Knesset. You don't know who are the judges or who are going to be the judges. And if you really want to go full Rawls, you don't even know what your own opinions are about these matters, right? Or what your own prejudices are, your own biases. You don't know anything. You don't know if you're rich or poor. You don't know if you're Jewish or not Jewish. You don't know anything. But that's a little bit hard to do. We don't need to go full Rawls on this. Let's just say we have no idea who's going to be in the government, who's going to be in the court, and now we want to get the procedures, right. Well, the first thing you want to do is not give anybody a bigger gun than they need, right? So, like, obviously, you can always demagogue this kind of thing. And let me tell you how. Supposing somebody comes up with this brilliant policy. We're going to give all the barbers in the city machine guns. Seems like a good idea. Okay? We're going to give them all machine guns. And then say you come and say that doesn't seem like a good idea; things could go badly wrong. And then the response is, well, you know, five years ago, a barber with a machine gun prevented a terrorist attack and saved many lives. So you go, yes, okay, it worked that time. But that whole line of argument seems like demagoguery. I'm not convinced by it. So, it's the same thing when you're trying to set up the branches of government. It's very easy, for example, to say, well, I don't know, why don't we just let the judges always decide if some government policy is reasonable or not, right? Why don't we just let them hear as many cases as possible? Because the more cases they can hear, the more justice they can do, right. And if we don't let them stop unreasonable things, well, my God, what happens if somebody actually does close all the mosques? That would be a law, presumably, but if it was a policy….

And what is the answer to that?

It's just unreasonable. Right, okay. So, the answer is that to say that the courts could always decide what's reasonable and what's not is to give them… it's like giving barber is a machine gun, okay? It's just giving them ammunition that is too big. You really only want them to be getting involved in a limited number of cases. You don't want them second guessing the government on every single thing that ever happens. But you've given them a tool, right, where they took for themselves a tool that allows them to do just that.

Okay, I hear you, and I understand. I want to push back a tiny bit. At a certain point, this boils down to who are you more afraid of?

Yes.

Right. I mean, a lot of life, by the way, boils down to what are we more afraid of? Insurance questions are about that. And war and peace questions are about that. A lot of family questions are about that. A lot of life is about what am I more afraid of, this or that? If you were to ask me, Daniel Gordis, just a guy sitting in an office. Would I rather take my bet on living in a country defined entirely by the Israeli supreme Court with no legislative branch to push back on it, even though I'm a basically religious guy and they're basically not a religious court and all that, or a country designed and shaped entirely by the Knesset? And I can't separate it from the fact that I look at the Knesset right now and see what I see. I'm going to say to you Moshe, you know what? Yes, you're right. I'm taking a big risk either way. The court could do things that I would find anathema, but they, I would say Daniel Gordis’s says predispositions, I grant you, they are more educated, they are less newcomers to the system, typically, so I'm going to go with the court. I just think they are less likely to create a horrifying society or a horrifying reality for me and my family who I care about a lot. Then the Knesset. In an ideal world, I would love there to be a balance, which is why I don't like the override clause, at least in the reform that was suggested a couple of weeks ago. Now, it's obviously being tempered, but what would you say to that? I'd rather live under the worst possible imaginable court design society than the worst possible imaginable Itamar Ben- Gvir and Smotrich society.

Okay, so here's my answer to that. First of all, when you design a system of government and you decide the checks and balances and the powers that you want the court to have and the powers that you want elected officials to have, you should not be looking at the judges and the members of Knesset that are standing before you at that particular moment. You are trying to set up a system that, like Hamilton and Madison way back in the 18th century when they wrote the Federalist Papers, is going to last for the next 250 years and beyond.

God willing.

God willing. Okay? Now, if you're going to decide how this system should be structured, not on the basis of what makes sense and what kind of powers it makes sense to give the court whoever the court is. Or the legislature, whoever the legislature is, and instead you're thinking, how much power do I want to give Esther Hayut and how much power do I want to give Bezalel Smotrich right. You are going to get to very short-term solutions that are not going to last. Okay? They will not pass the test of time. So that's my first answer to you. It's a somewhat rarefied answer because it does not mollify the person who's looking at Bezalel Smotrich and going, “oh, my God”. But in any event, it's a correct answer in the sense you don't know that 50 years from now, you're not going to have a bunch of Shas guys or whatever comes after Shas sitting in the Supreme Court and a bunch of educated legal types sitting in the Knesset. You don't know that. And what you have done, if that turns out to be the case, what you have given is that you have given all the power to the Shas guys in the court.

So, I'm just telling you, be careful what you wish for. That's the first thing I'm telling you. But the second thing I know that that doesn't mollify people who are going, “Yeah, but Bezalel Smotrich”, right? First of all, I have to since I mentioned him and you mentioned him, I know Bezalel well. He is actually a very smart, fair minded, and good parliamentarian. I just want to put that on the record. Okay?

On the record.

Okay. But I understand that he's not everybody's cup of tea. And the question is, okay, is your opinion right? In other words, if you were better informed about the facts, would you still hold your position that you just want to give tons of power to the court and as little power as possible? So, first of all, I have to say, and this is really maybe just it's a slightly pedantic point, but saying I don't trust the Knesset, let's move all the power to the court is very undemocratic. You understand that what you're saying is…

Yeah, but I’m not saying move all the power…

Okay it’s anti majoritarian in a strong way.

But a limited form of judicial review is not anti- majoritarian.

Correct.

And I’m not advocating radical judicial review.

No, just the way you put it before was if I have to decide between them…

That was the extreme case, obviously.

Fair enough. We're in agreement here.

Okay, we got there.

Okay, good. Now, with regard to should you really be trusting the court? And the example you gave is, what if the Knesset extends its own term? Okay? What if they don't respect the elections, right? The elections happen and they just say, we're not honoring the elections. That's a great question but let me tell you why you've got it exactly backwards. In the entire history of the state, it has never happened that anybody so much as breathed a suggestion that any legislator or government minister has ever so much as breathed a suggestion that we should not respect the elections. Okay? So, you're raising a completely hypothetical possibility, right, which we have no reason to believe will happen, but worry about the worst case. Okay? Now, here's the thing. The court could do that, too. The court could also not honor the elections, right? The court could rule that the elections are invalid. Right. But here's the thing, and here's your mistake. Not only is it hypothetically possible that the court could do that, and when you design your system, you should be worried about that, too, okay? This has already happened in Israel in our recent past, okay?

The fact is that after Benjamin Netanyahu became prime minister there were petitions brought to the court that said that since Netanyahu has been indicted, not convicted, okay? The law says that if he's convicted and he has no appeals, then he has to step down. But that was not the case. Right. And people brought petitions to the court saying, well, you should force Netanyahu to step down. Now, at this point, any reasonable court should have said, there's no basis. There is no basis for us to deal with this. There is no law. And it would be the most fundamental disrespect for the people who have elected this person as Prime Minister to say, well, you chose him. You voted for him. Right. You elected him. But we are saying that he can't sit as Prime Minister. The Court did not say that. The Court sat and heard the case and discussed the case and said, well, we could have, but we're not. Okay? Now, so I'm just telling you that.

And you see that as a continuation of the Barak power grab of the Courts?

Oh, absolutely. Absolutely. And so, what I'm telling you is, if you're talking about hypotheticals, you should be much more worried about the Court because we have empirical evidence that the Court might actually do it. We have no empirical evidence that the government would do it. Okay.

That's a good answer. I think you can understand why I would be afraid of a situation in which one could shut down mosques or churches.

Let me address it, okay? So fair, the question is, do we want to go to the other extreme? Right.

And I know you're not advocating that…

No, but I want to be explicit about it. Okay. We already said that we don't want to give machine guns to barbers. All right. And that's why I said I don't want to give the Court this reasonableness as a basis for striking their government decisions. Fair enough. But I think that the override is a kind of a machine gun, too, that we're giving to the Knesset. Okay. In other words, I understand why some people in the Knesset want this override. They think that the Court has made some decisions that were extremely unreasonable, and we have no recourse. Right. The Court remember, the Court has recourse when it can strike things down. It has judicial review. We don't have any review over the Court. So, if the Court would decide tomorrow morning, they would just get up and say, “we rule that you have to close all the mosques”. Okay, just to take an extreme example, not likely to happen. It's not likely to happen the other direction, either. The Knesset has no foundation for undoing that. Now, they could pass a law that says you can pass a Basic Law, says you can't close down mosques. Okay? But then the Court could say, “hey, we're the ones who interpret the Basic Laws. We decided that we do want to close down mosques.” Okay, again, if we're talking about hypotheticals, I can make up my own hypotheticals. But no matter. That's why the Knesset is concerned. There have been cases. Right. When the Court struck down the compromise agreement about the Haredi Draft right. The Tal Law. And when they struck down three different versions of laws about detaining illegal infiltrators into the country. So, the Knesset kind of felt that they were violated, that the court had no basis for making a decision, but they had no recourse. Okay? All right, so that's why they want it. But even so, I think they're just giving them a carte blanche and say, look, anytime the court strikes something down, you could just bring it back with 61. I think that that is too big a gun, all right? It's the wrong gun that it's too big. So that's why I am opposed to it. But I'll tell you something else. I'm opposed to it for another reason. I think it would encourage the court to strike down more laws than it already does. Okay? My kids make fun of me that at the Shabbas table, I often mention something called the Peltzman Effect, all right? The Peltzman effect is this guy Sam Peltzman. He's an economist in University of Chicago, right? And he studied the effect of seatbelt laws.

People put them on less?

No, what happened is people did put on the seatbelts, okay? And they drove 10 miles an hour faster because they felt safer. Every individual has a certain tolerance for risk. When you put on your seatbelt, you feel safer, right? Since you feel safer, you want to keep your risk level constant, all right? You step on the gas. Right? That's what happened. So, the result was there were actually more accidents rather than few, but fewer people in cars died because they were wearing the seatbelts, but more pedestrians died because they weren't wearing seatbelts, okay? Anyway, Peltzman did this in different states because they brought it in different years so he could neutralize the effects of time. Fascinating thing. Anyway, why do I mention the Peltzman effect? Well, when judges strike down a law, well, they're taking a certain amount of political risk here. It doesn't seem to bother them very much, but it's not nonexistent. They feel a certain amount of political risk when they do that. And if you tell them we always have the option of overriding, that's basically like somebody in the back seat with an extra set of brakes, right? They're thinking to themselves, man, we can really step on the gas now, right, because of the override. That's a very unhealthy dynamic. Okay, I don't want to get to that kind of dynamic.

Well, assuming that that's how the board would respond. Who knows? But okay, look, this has been very illuminating, and I think for our listeners who may not have heard Yaniv Roznai, it's really worth listening to him and listening to Professor Koppel and just hearing two very smart people with two very different takes, both of whom care about democracy, both of whom care about the state of Israel, both of whom are thoroughly decent human beings who are just on mostly opposite sides of this issue. But I want to take a complete step away from the law. And I want to ask you just really a question about I guess maybe it's a legal question, I'm not really quite sure. We're in a very dangerous place in Israel right now. I mean, there are so many things here that could blow up, some of them physically and some of them politically. Some of them morally. I have to tell you; I get very nervous every time I see one hundred thousand people on the streets in Tel Aviv. And I'm not nervous that they're going to stop the traffic on the Ayalon, which they have done and will probably continue to do, which I have mixed feelings about, but I can make an argument either way, but I'm very nervous about somebody tossing a grenade into a crowd. I'm very nervous these days and I have just a dread, which I hope is misplaced. Why not after the Knesset is done with its deliberations, and we've seen it in the last 24, 36 hours that in the Constitution Committee, there are compromises being sort of hammered out a little bit about all sorts of things. Why not put this up to a referendum? Why not let the air out of the balloon, the pressure out of the tank, and say to the Israeli people, we're going to work this out on the Knesset, we're going to come up with whoever compromise most people feel comfortable with, and nobody's going to feel that anybody has anything rammed down their throats. We're going to put this up to a vote. I don't hear anybody talking about that. So, it must be a bad idea, but I just don't know why it's a bad idea.

Okay, so the point is it's not a horrible idea, it's just that you can't decide when there's a particular law that you're worried about that with that one we're going to have a referendum about. Okay? Every law, every law is important.

Does the government have the right to call for referendum?

There are situations in which you have to have a referendum. Okay, you could call a referendum. I think, though, it's a bad precedent and it's also unfair to say there's particular laws that I am particularly worried about, and I think those are the ones that have a referendum. Okay. You know, there have been other government decisions that, you know, that were controversial when it came to the 2005 Disengagement, we didn't have, there was a referendum within the Likud, and it was trounced by 60 to 40 and that was completely ignored. There was no actual referendum about. And when Barak did all of these things in the Court, of course none of that came to a referendum because that was a court decision.

But the only thing I would push back on and say, and again, we're not going to really disagree at the facts... I'm just asking a guy that knows a lot more about it than I do, right? One could make the argument that we have never had such a divisive internal issue not related to our borders and our enemies in Israel's history, and therefore this is not just like any other law. Let's put it on a referendum. One could make that argument.

I'll tell you what I think we should do, okay? I don't think we should have a referendum. I think we should do something else. I think that the opposition and the coalition need to sit down and reach a compromise here that has more than 64 votes for it.

Which is what Herzog says.

Well, yeah, Herzog says it, but it's not enough to just say it. People actually need to do it. And that's what I do all day long, okay? I do not spend most of the time talking to people who agree with me about this law. I spend my time speaking to people on the other side who are opposed to this law, trying to figure out, well, where's the common ground here? Okay? Each element of these things, which I explained to you why I think they're important. I mean, we didn't actually drill down into the law where the compromises are, which is worth the conversation, but I think every single element of this reform is in itself important and valuable, and I'm in favor of it, but it can be toned down in a way that would draw much wider support and make people much less fearful. So, for example, I've already told you that I don't think that the override should be included in the reform with regard to the committee that appoints justices. We're playing with numbers here, right? I mean, the way it is now, with only four only four elected officials out of nine, that that's just not reasonable. Okay? There should be more, okay? There should be more opposition members on this committee at the expense of the judges. Right? I think the judges weigh this committee down and keep the whole thing too homogeneous. You want to have opposition people and coalition people that would kind of bring more diversity to the court. So, in each one of these things, there are compromises that can be reached, and they will be reached, and that's the right solution to this problem.

That is actually a great optimistic note, not only can the compromises can be reached, but you think that they will be reached. I hope and pray that you are correct. Cannot thank you enough for your really extremely articulate and very helpful laying out of the issues. There's not a person who listens to this who's not going to have learned a tremendous amount. So thank you for the time and wishing all of us in this country better news and better days.

Amen.


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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