In our podcast this week, we aim to help everyone understand better what is really at stake in the battle of the judiciary. We speak with the Times of Israel's senior analyst, Haviv Rettig Gur about his recent op-ed and ask him to explain the following:
Why the right (correctly) considers Israel’s Supreme Court too powerful and a runaway court? How, for example, has the threat of a Supreme Court ruling changed Israel’s battle plans in the midst of battle, something that could never happen in the US?
What is dangerous about the Right’s proposed fix? How would the Right respond to that accusation?
What is the “reasonableness” test and why is it so controversial now? Why do the Left and the Center believe that maintaining it is critical to Israel’s democracy?
Israel has few of the “checks and balances” that are built into the American system … why is that? What could be done to change that?
Is Netanyahu very powerful or extremely weak, and why is it that he has been interviewed on Jordan Peterson’s and Bari Weiss’ podcasts, but is refusing to speak to the mainstream Israeli press?
How is this crisis likely to play out, and why is that much more difficult to predict than in previous Israeli crises?
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.
These are tumultuous times in the state of Israel. There were protests last Saturday night in Tel Aviv, about 80,000 people. In Jerusalem, a few thousand people. In Haifa, a few thousand people. There is a sense of a real reawakening of the political opposition in certain kinds of ways. And while I think many people in the English-speaking world are following closely the political upheaval, what they may not fully understand is what's the political upheaval all about. They know that some of it has to do with personalities that are part of the new government, such as Bezalel Smotrich and Itamar Ben-Gvir and Avi Maoz, who some people consider a little bit less than tasteful in a whole array of ways. But one of the issues that people know is part of this whole storm is the issue of judicial review and the issue of Yariv Levin, who is now Minister of Justice and the changes that he wants to make to the judicial system.
Today's conversation with Haviv Rettig Gur, who, to my mind is one of the most insightful writers on Israeli politics in the English language, is an opportunity for us to understand from him better, really, what's at stake. What does Levin want to change? Why is the Left so opposed to the change? What is the response of the Right to the accusations of the Left that it's the end of Israeli democracy? Haviv wrote in a very fabulous piece just recently in an article entitled “Battle over High Court exposes frailty of Israel’s piecemeal system of government”. So very important things about the lack of checks and balances that Israel has built into its system that Americans take for granted as being part of their system. So, this is really an opportunity for us to learn from someone who has written exceedingly coherently about all of this, who follows it closely, and who is, I think, one of the most important English language voices on this subject. Haviv Rettig Gur is a senior political correspondent for the Times of Israel. He has been working with David Horowitz, who is the editor of Times of Israel for 15 years. Born in Israel, educated in Israel, was a spokesman for the Jewish Agency for a number of years, but he's now a journalist, a political analyst, and widely, widely read all over the English-speaking world.
Haviv, thank you so very much for taking time to be with us today. Let's start with this. Yariv Levin, Minister of Justice, wants to make some very far reaching changes to the judicial system in Israel. In just bullet point form, what are the major changes that he wants to make? Then we'll get to why they're controversial, but let's just start with what they are. What does he want to change?
Sure. He wants to rein in the Court. Israel has a very, very powerful Supreme Court that's really two different institutions. It's the High Court of Appeals, like in the United States. It's also the High Court of Justice, which is a Court of Equity to which anyone can appeal against any body of the state almost in real time. And so, whereas in the United States you'll have, I don't know, a couple of dozen cases a year that are appeals from lower courts, in Israel, the same 15 Justices of that appeals court will also hear thousands. On an average year, it could hear 5000 direct appeals by citizens that come before those 15 Justices in various ways. A single justice will hear obviously, most of the time it will just be a single justice. And that's against, it can be against the military, it can be against members of the commission. It can be against any branch of the government, executive or legislative. Yariv Levin wants to rein in that incredibly powerful Court of Equity, that second function in very dramatic ways, and he wants to do it really in three ways and then sort of a fourth plus one way.
One is he wants to create a system in which the Israeli political class, which is to say the Knesset, and almost entirely the majority in the Knesset, the coalition has a majority on the Appointments Committee that appoints judges in Israel. Right now, that committee, to appoint a Supreme Court Justice, nine-member committee, has to have seven members all vote for a particular person to be a justice. And three of the nine members, which is to say voting a veto block, are composed of the Supreme Court Justices themselves, which in thousands of votes over the last 20 years, since the current system in its current iteration was put in place in 2002, those three Justices of the Supreme Court have always voted together. And so functionally, the Israeli Supreme Court has a veto over appointments to the Israeli Supreme Court. And he thinks that is far too powerful, a power to give to a court. It should be appointed by the elected politicians, as happens in most of the English-speaking world, et cetera. And so that's one thing he wants to change that Appointments Committee and the details aren't important. He wants to expand it to eleven, and he wants to give the coalition more members and a few different ways of doing it.
But the basic bottom line is that the coalition, which is a majority of parliament, that also is the government, which is to say the majority in the legislature and the Executive, as a unitary body will have a majority on that committee to appoint Supreme Court Justices. He wants to give the Knesset an override. A 61-vote override. Which is to say, if the Knesset passes a law, the Supreme Court hears that law. Hears an appeal against that law, rules that law unconstitutional. Then with 61 votes out of 120, the smallest majority you would need in the Knesset will be able to overrule that Supreme Court decision and pass that law as constitutional. And here we have, you know, very specific things that the Knesset wants to do in terms of the, the rights of asylum seekers and, and all these other things where the Court and the legislature have been at odds over the past few years. And the third thing is he wants to cancel the reasonableness test for legislation. This is a very controversial thing. The Supreme Court has used over the years to really step into all kinds of decisions made by the legislature and the Executive and say that they're just not reasonable. One of the more famous ones that really bother this coalition is the ruling by the Court that convicted felons or people or even just being investigated for potential crimes cannot serve in the cabinet. And this is something that came up back in 1995. Aryeh Deri, the head of Shas, was under indictment, I believe, for corruption as Interior Minister. And the Court ruled that it is unreasonable, it was legal, it was emphatically legal, but it wasn't reasonable to allow him to be Interior Minister. And that had real world consequences because Deri couldn't be appointed by the Rabin government. Shas actually left the coalition and abstained on the vote for the Oslo Agreement in ‘95 in the Knesset instead of voting for it as members of the coalition. And so, there wasn't a Jewish majority that Rabin really, really needed at the time for the Oslo process in the Knesset. And so, there are real world consequences to these decisions by the Court. In that case. It hurt the left. Since then, the Court has made some reasonableness arguments that hurt the right. And the right wing has argued over the years that the court has used the test of reasonableness not as a legal test, but in fact just as a judge saying, well, I don't think that's a good policy, as though a judge is a better judge of policy than the elected politician or minister or ministry of finance or any other government body. And so those are the three reforms. And then there's another one that's worth talking about, but I think is much less than significant, which is the legal advisors. Every ministry has a legal advisor. It's very difficult for a minister to do anything without their legal advisor signing off. And the legal advisor doesn't actually functionally advise the ministry. It more sort of works for historically the attorney general of the government and tells ministers they cannot do things. And so, there's been a lot of chafing over many years about the power of these legal advisors. So those are the four elements of the reform.
Okay, that's very helpful. Let's stick with the one about judicial review, which is, I think, is the one that is getting the most play, certainly in international circles, when you read whether it's the New York Times or other bodies that are writing about what's going on in Israel, it's the issue of judicial review that is getting, I think, the most attention. Now, the typical response from the left or the center, and I hear the center and the left, I think are sort of aligned is, look, judicial review is part of the operating system of any functioning modern democracy. There's got to be a way in which the court can say to the legislature, “No, that violates some fundamental principle upon which this country is based”, and without that, say, people that's just sort of the rule of the majority without any breaks whatsoever. And that sounds like democracy, but it's not really what democracy is all about. So, as you pointed out a minute or two ago, Bibi has 64 members now in his coalition, which is over the 61 that would be needed. And as you pointed out, so, for example, there's the issue of asylum seekers. There have been governments, Netanyahu governments actually, that wanted to take action and kick out the 40,000 something people that have come here in various ways, most of them illegally. Leave that aside for now. The 40,000 people, many of them have been here for decades, and have had children here, but they've been here for a long time. They didn't just get here yesterday, and it was the Supreme Court that blocked Israel kicking them out. So, what the Left would say now is the 64 people could rule that we're kicking them all out and there'd be nobody in the country to stop them. Or since many of our listeners might not really care that much about asylum seekers, for whatever reason, you could theoretically have a world in which the Knesset could come out and say, this is obviously extreme, but just in terms of how the system might work, if Israeli Jewish doctors choose not to treat Arab patients out of some religious or principled or ethical crazy notion that's their right and there would be in the system, nobody to stop them, nobody to say, that is simply not how a modern democracy works.
We know that Avi Maoz, aside from being radically homophobic, is on record as being opposed to women serving in the Knesset, is on record as being opposed to women being in the army. Now, Bibi’s coalition is nowhere near there, but in a hypothetical world, if they were, say, the left, there'd be nothing to stop a majority of 61 people from saying, no women in the Knesset, no women in the army, no doctors have to treat patients they don't like, etc. What's the response of people who are bright and sophisticated, and I think we should give them the benefit of the doubt, really care about Israel? I don't think this is about people that want to tear down Israel. What would somebody like Yariv Levin, what would he say to those who say, then this really isn't a functioning democracy in the way the Western world works?
So just to say before that you gave examples that you engineered to be extreme, but in fact, women entering, for example, the Air Force as pilots was a case brought to the Supreme Court. That was the Alice Miller case. And to give a specific example that affects your listeners, for a decade in the 90s the Israeli Knesset couldn't come up with an answer to whether Reform converts could make Aliyah under the Law of Return. And that came to the Supreme Court. And several times the Supreme Court asked the Knesset to answer the question and refused to rule. And I think it was, you know, the fourth time. I mean, everyone can Google this. I'm just remembering this out of memory right now, but I believe it was the fourth time that it came to the Supreme Court over a decade where the Supreme Court gave the decision that said, if a recognized Jewish community recognizes this person as a member of the community, they can make Aliyah. And the rabbinate doesn't have to recognize that, but certainly the state of Israel does.
And so olim (immigrants) Reform converts have been able to make Aliyah. And these are questions that now, if Levin's reforms pass the Knesset with a 61 vote, not even the entire coalition. A coalition, by definition, has 61 or more votes. Almost very rarely, and only for very brief periods can an Israeli coalition exist without 61 votes. And so that will no longer be something the Supreme Court has the power to do. And these are classic functions of courts. The right has many, many examples, a long litany of Supreme Court overreach where the Supreme Court just makes decisions that are just not contained in any law anywhere. But there's also a longer list of places where the Court just literally protected individual rights in places of either legal lacunae or real, just oversteps. And I want to come back to that because some of the problems in Levin's reforms are now being shared on the right. And there's a big right-wing discussion that is beginning in Israel about, whoa, maybe we have an argument here. It's a strong argument, but maybe we're overstepping.
I just want to interrupt you for one second and point out that a recent Israel Democracy Institute poll showed that in terms of judicial review, people more or less polled according to party lines. The left was in favor of judicial review, the right was against it. And I think you may have mentioned this also in your piece, but interestingly, the Likud itself is split somewhat down the middle. In other words, even people who voted for Bibi, some significant percentage of them, are saying, wait a minute, we actually do think the court ought to be able to strike down some rules. So, there is some erosion on the right in terms of the absolute opposition to digital review entirely.
And we've since had three or four more polls. Channel 12 of the biggest commercial television channel has done a big poll and we see that everywhere 25% of Likud voters share the left’s concern that democracy is threatened. Which is one of the reasons Levin is pushing this very, very fast. Because he doesn't want to do this before Election Day. He doesn't want to do this before potential destabilized coalition leads us to an early election which most governments ended in Israel in the early election.
Okay, I just want to make sure that everybody understands that because there was a lot of sort of shorthand there. In other words, what you're saying is that Levin who's been working, by the way, at this for decades I mean, this has been his one major issue that he's been committed to in his whole political life, fears that what is now a fairly stable 64-member coalition will over the course of time, over God only knows what issues it happens to all Israeli coalitions, it'll start to break up. And when the coalition is more rickety, he doesn't want to be trying to get this through then. So, he's in a hurry to get it through now while the coalition is relatively fresh, new and stable.
Right. He himself hasn't said this publicly, but reports have said that he actually threatened to resign and to resign in protest at Netanyahu if Netanyahu doesn't back him on these reforms hard and fast and early, and if the rest of the Likud front bench doesn't do the same. And so, when he announced these reforms last week, we saw little sort of Tweets come out from people like Nir Barkat and Israel Katz and all these other people in the Likud front bench almost identical in wording, little support Tweets. And then they haven't spoken about it since. In other words, they were told, you must end this. That's Levin. Right. And so, there is this push through the party itself. The party itself. There's resistance. The internal dynamic of the party is itself very interesting because Netanyahu rules so powerfully inside that party that there isn't really a debate inside Likud. But there is a lot of a lot of worry even within Likud.
So, the question is now what would the right say to the left who says, but without judicial review, it's not a real democracy? Let's say Yariv Levin were to join our conversation right now and we would say we understand you think the court has overstepped. You understand that we all understand that intrinsically, even in America, there is something a tiny bit antidemocratic about judicial review because after all the immediately directly elected representatives of the people have spoken and indirectly elected in America because they're approved by the Senate group of people have ruled otherwise. So, we understand that there's a tension here that's always been part of the nature of the conversation about judicial review. But Yariv Levin, what would you say to people who say if a majority of 61 people can kick out all the asylum seekers or can rule that reform converts can't make Aliyah and people say that's just not how a democracy works, what would you say? And what would he say?
Yeah, I think Yariv Levin would say something along the lines of generally in the free world there is a negative correlation between the power of a court and the political influence that the political system has over the court. So, when a court is very, very powerful, for example, the American Supreme Court is relatively powerful in the democratic world compared, for example, to the British Court. It is appointed by the political class now by two different institutions, the Senate and the presidency. And they're at odds and there has to be a negotiation. But nevertheless, the elected representatives of the people appoint a court, and that court is pretty powerful. And when you have a British Supreme Court which is much less powerful, has much less powers of judicial review, traditionally it's also less appointed by the parliament. There's less influence of the political class over the appointment of the court. And so, as the Court grows more powerful to rein in the Court, there's a need for more political influence. In Israel, we have an anomaly on that graph. If you track that graph, there's this line and just about every democracy fits that line. And in Israel we have the very strange anomaly of a court that is, I would say, my opinion, and I think Yariv Levin would agree and this I share with him is by far the most powerful court in the free world. It has just taken for itself powers that are just unheard of elsewhere, informal powers, sometimes. In other words, the threat of going to the High Court of Justice in a direct appeal overnight just literally within a day, has changed military operations in mid stride. For example, back in Operation Defensive Shield in 2002 where the army saw that there were appeals to the Court about military operations, and those military operations were affected. I want you to try to imagine a direct appeal to the American Supreme Court about a battle underway in Afghanistan. And because of the threat that the court might intervene, the battle itself changes. Now, you might say, well, that's great, right? Fewer civilians were killed or something. You might say that we want that in this world, but there's no legal basis for the court, and it's a complete invention. And is that what a court should be, right on specific things? It has reigned in the Knesset just very recently. I mean, just thing after thing, just in the lifespan of someone who might have been in the Knesset the last four years. They would have remembered that when, for example, State Attorney Shai Nitzan, the Chief Prosecutor of the State Attorney’s Office is leaving office in 2019, there is an appeal against the government replacing him because the government is the government of Benjamin Netanyahu. And that state attorney's office is currently indicting Benjamin Netanyahu or preparing to indict Benjamin Netanyahu. And so how dare the government in power appoint the state attorney if the person at the head of the government is going to be investigated? And then I went to the supreme court, and the supreme court told them they can't appoint someone. And so, there was this temporary appointing of someone, and so there was this constant tug of war with the supreme court. And nobody knows why the supreme court would have that power. In other words, it's not written anywhere. And you've seen that Israel is a country that never sat down and wrote a proper bill of rights. We don't have in law a right to religious freedom. We have religious freedom, but it's not written anywhere. We don't have in law a right to freedom of assembly and protest. We don't have in law a right to freedom of speech. We don't have in law all of these really basic things that you would think would be written in a basic bill of rights. And just we never got around to literally writing it for reasons that there's been a big debate over the last 75 years about whether constitutions are good things or bad things.
But the point is, we don't have those laws. And so, the Supreme Court has used this right to dignity that was written into a 1992 law to give us all the rest of the rights we have. You can sue for discrimination, but there's no right to equality. How do you sue for discrimination without a legal right to equality? Well, you have a right to dignity, and the court has ruled that dignity means you cannot discriminate. And so, the court has stepped in in 100 different ways to limit the ability of the executive and of the legislative to function the way they want. And it's done it constantly in this constant sort of staccato of, of event after event after event and I don't know a politician in the Israeli system who isn't frustrated with the Supreme Court. 15 years ago, I think it was my first actual interview of a politician as a journalist. I sat down with Michael Melchior, a rabbi, a very left-wing progressive, even though he's also a very Orthodox rabbi. He was a member of Meimad, the left-wing Orthodox Party that ran with the Labor Party back in 2005 I think it was. And I had an interview with him. He was chairman of the Knesset Education Committee at the time and he complained bitterly about the legal advisors of this government, of that government who were not allowing a minister to move a secretary from one office to another office without going through a complicated legal review process. And so legal review has ended up just choking the capacity of now at the time, the Labor Party was in that government and so they were very frustrated with these lawyers and legal review and judiciary and Supreme Court intervention. And Levin would say that this is a runaway legal infrastructure that is powerful in a way that no other government on earth has to deal with. It has something to do with Jewish culture. It would sound like a joke about Jews to say that Israel has the highest number per capita of lawyers in the world but in fact it does actually have the highest number of lawyers per capita in the world. And we have the most powerful judges and the most powerful courts and the most powerful legal advisors in the world. And that has to be reined in. I think they would say it and they would have a huge, long list of examples of decisions that this court has made that no other court in the west would make.
So, let's say somebody says, okay, we grant you that. There's got to be reform to the judicial system. The court and the legal advisors one could say, are a runaway train and somebody's got to put some brakes on this train. But someone might say, let's go back to the asylum seekers. 61 people out of 120 decide, now we're going to take all 40,000 people who basically have nowhere to go without being in life's danger. But you don't care about that and you're just going to throw them all out of the country. Where is the mechanism anymore? Where somebody, a court or someone else can ever put breaks on the majority? And are we going to have simple majority rule here without anybody to defend the rights of minorities? Whether people rule against Israeli Arabs, whether people rule against the Bedouin, whether people rule against whatever it's going to be. What would Levin say to the claim that every functioning democracy has some version of judicial review?
Yeah, he would say that it needs to be very limited and very minor. Let me say that here my ability to defend him ends because he has not publicly answered that question, and some of the proposals that he is proposing here would gut it in a really dramatic way. Everyone's focused on the override because then the simple coalition can do whatever it wants. But reasonableness is a really shocking thing to cancel because the Court has used the concept of reasonableness to essentially become an uber overarching kind of policymaker. We should cancel the reasonableness test in the first place. But reasonableness is fundamental to law and to judicial review for centuries. The American Constitution talks about reasonable search and seizure and probable cause and all these ways in which a judge is supposed to use their reason to protect individual rights. I'll make it a very simple thing. In Israel, you need to protest. To just hold a protest against the government, you need a permit from police. What if the cop doesn't give you that permit? And doesn't give you the permit for a very simple reason? Public order, right? Unless you're protesting in the middle of the sea or in the middle of the desert, the police always have the excuse, which is written into law, they're allowed to not permit protest because of public order. Where do you go? Who do you ask? Who do you appeal right against that police decision? And right now, you don't have a right to assemble in protest in Israeli law. You go to the court, and you say, this is an unreasonable use of police power. And the Court says, “Great, you can hold your protest”, and it usually gives you the right to protest. Now, if you cancel reasonableness, you have no one to appeal to you. You then go back to the cop and ask nicer. Now a right that exists at the sufferance of the executive does not exist. A right that exists only as long as the government feels it. So, the cancellation of reasonableness is astonishing. There is a deep frustration in the Israeli Knesset, in the Israeli government, that the Supreme Court has weighed in without any legal basis on the reasonableness of appointing certain kinds of people, mainly convicted and things like that. There's no law against it. And so how dare the court tell us we can't appoint convicted people to positions, but then to cancel reasonableness altogether is an astonishing overreaction. Because what that means is okay, so you pass a basic law that tells the courts when it comes to political appointments, you have no right to weigh in with reasonableness. Reasonableness is canceled for the purposes of appointing ministers. But then, once they're in power, I can't sue for reasonableness over their actions, their executive actions. That's just the end of all capacity to push back in any institution in any way. This is the classic function in British courts. And just literally for centuries, you combine the end of reasonableness with the coalition majority and appointments with the 61 override and you just have a court that just doesn't exist. It doesn't exist when you need it. In other words, it exists until you actually need it to rein in the government just literally in the protest you want to hold against whatever decision or government you don't like. And so, the response has really been a blowback. If you take the point about the power of the court and the political influence over appointments to the court which track on all the different democracies. The more powerful the court, the more influence the politicians should have to rein in that power. We're going from one extreme and Levin is proposing the other extreme a court that is very weak and utterly politicized and that is maybe not the right direction to go. And the worst part of it is he's not even talking about it. In other words, when you come to the Likud and you say, okay, great Likud, you want to pass this big reform. There is this big theory on the right among right wingers very uncomfortable with this proposal that it's much more extreme than Levin intends to pass. Because in a parliamentary negotiating system it's always a better idea to propose a much, much more radical bill than the one you want to pass so that you force the other side to negotiate. You drag over to the center and then you end up passing what you originally actually wanted. Right? If you start where you wanted, you're going to end up moving much more to their side. And so, he started radical, but doesn't really mean it. That's the argument I have heard on the right, including within Likud. The problem is he hasn't said that, and he hasn't shown a willingness to negotiate on anything that isn't cosmetic, and he hasn't given a theory.
In other words, we don't have an argument. There isn't a debate happening here. You mentioned Marbury v. Madison. We don't have a Federalist Papers kind of discussion where anyone is laying out. I want you to know, as a citizen of Israel, let's say I vote for the right. I'm obviously not. I'm an objective journalist from Mars. But let's imagine for the purposes of this conversation that I vote right. I want you to tell me, Yariv Levin, as someone who potentially voted for you imagine that, what will protect my rights the day the center left comes back to power? I don't know what protects my right to protest. And if you can't give me that explanation, we're doing something here that's irresponsible. And that hasn't been the discussion. It's all culture war. It's all identity politics. It's all screaming and yelling and shouting. And none of it has been really substantive. And that, to me, is the scary part that they don't even feel the need to come and explain.
Okay, that is scary. I want to ask one more thing before we talk a tiny bit about how this might play out. But you wrote extensively in your piece in The Times of Israel about how the battle over the Supreme Court has actually exposed yet another issue, which is what you called Israel's piecemeal system of government, or a lack of checks and balances. Can you just relatively briefly explain to us in what way Israel is lacking the kinds of checks and balances that many of our English speaking listeners who take the American system very much for granted? What does the American system have that Israel does not have by way of checks and balances?
Yeah. The simple answer is just about everything. The American Founding Fathers had this very brilliant insight, which they really took from, it's as old as Plato, which is, the great fear of democracy is mob rule. The great fear of democracy is that the majority will be foolish because human beings are foolish, and it will oppress minorities. And so, democracy ends up in this kind of chaotic and oppressive mob rule that's not less oppressive than tyranny. And that is literally in Plato and Aristotle's discussions with government that is deep in there. And the Founders were worried about that. And so, what they did was they developed a system and they laid this out beautifully in Federalist Ten and 34 and 58, all the classic Federalist Papers. They laid this out beautifully where they developed a system that says, you know what? We'll do our best to prevent majorities from ever forming by slicing and dicing that majority. And so, you have different institutions. Everybody knows that you have institutions that check and balance each other, the House and the Senate and the White House and the Court. But what people don't realize is just how deeply they are made to rein each other in also as different ways of cross sectioning the electorate.
And so, a member of the House is elected from a district and a member of the Senate is elected from a state. And a president through the electoral college is some combination of that popular vote of the House and the state vote of the Senate. And then they are also elected on different schedules. So, a House member's two-year term and a president's four year and the senator's six year. And what that means is that if you are a populist who rises in America and wants to kill all the Irish, I had to pick someone, I apologize to the Irish. But if you decide I have to kill all the Irish, you can take over in one just fascinating and phenomenal, you know, explosion onto the political scene as this incredibly charismatic populist. You can take over the House instantly within that two-year cycle, but you can only take about a third of the Senate, even as best right. And so, you can't pass legislation until you take the majority of the Senate, which takes another two years. And even then, you might have lost the White House and say, you still need the White House unless you can pull two thirds, and then it goes to the court. And then the states, through three quarters of the state legislatures, amending the Constitution. What you end up having is different cross sections of the population. The state of Wyoming has as much veto power over the House, which represents the population itself, as the state of California. And the point is to rein it in. Now, the majority will win. You cannot deny the majority of victory, but it's going to take four years, five years. Can a populist sustain their campaign for five years and that way really change the country fundamentally? It's much harder, and so they made it harder for majorities to form. You go from that example to Israel, even in Britain, by the way, you have direct election of MPs, and you have regional election of MPs, and so you have parties and you only have that essentially House of Commons. There's some power that the House of Lords has to rein them in, but not much, mainly advisory. But you have MPs having their own elected, they're elected personally, they have their own power base in their own district. In Israel, you have none of that. The entire country is a single district, a single constituency.
You have a unicameral House of Parliament, just one house. It's a very small house. 120 MKs for a 10 million population is not a large parliament, even compared to Austria, compared to Switzerland, countries of similar size. And you have a government that by definition is a majority of parliament. And so the executive and the parliamentary majority are functionally one body. And it's very centralized. Most Israeli political parties in the Knesset today don't even have primaries. Likud has primaries, but in fact it doesn't, because Netanyahu's decisions about the party list are never opposed within the party. He has essentially gutted opposition within the party, and that's not unique in it. Likud is a very loyal party in its culture, and its DNA over the last 75 years has had four leaders, exactly four leaders. And so even the biggest party with the biggest primary vote that there is in the Knesset isn't really a party that has internal opposition and internal debate.
And so most MKs don't believe themselves elected by the electorate. They believe themselves essentially appointed by the party leader. And so essentially you have about, I don't know, ten people in this country elected by the people who control factions in the Knesset and who negotiate amongst themselves how the country is run. Of those ten five or six on average are the government decide everything and nothing reins them in. There's simply no other system except the court. And my piece was the suggestion that the Left’s very argument, which is very reasonable and serious, that if you gut the court if you weaken the court from the most powerful in the free world, which maybe needs to be reined in to the weakest in the free world. You end up in Israel with absolutely nothing else to check and balance any other part of the system or just this unitary executive and legislative. And so, what we actually need is not to have an endless fight over the court which the left will probably lose because the court really overdid it over the years. And the right has an argument and more to the point the right wins elections now. The left needs to start talking about building new checks and new balances another house of parliament, a strong presidency that can veto the government a way to slow majority rule. If we don't have majority rule, we're not a democracy. But if you have only majority rule and it's instant the way we would have after Levin’s reforms then that's the wrong kind of democracy. That's the kind of democracy that for 2500 years has been understood to be a bad kind.
So, this raises the issue obviously of the whole history of Israel's not having a constitution. The Declaration of Independence as many of our listeners know explicitly said that Israel would pass within x number of months a constitution, and it didn't say that by the way gratuitously that was part of the requirement of the United Nations resolution that created the Jewish state. It created a Jewish state. It created an Arab state. It required that both be democracies and it required that both pass constitutions. Obviously, the Arab state never came to be. So, it's kind of moot what that would have been. But the Jewish state did come to be, but it did not ever live up to that obligation of having to pass a constitution. It didn't owe anything to the United Nations after the war obviously because the whole plan had changed but it never did it for itself. And that's something that we have to come back to in another conversation to hear why there was never a constitution planned and what it would take now to try to get one planned which would be very difficult but perhaps not impossible. Sometimes these crises are actually opportunities to get people to think anew. Before we wrap up, let me just ask you I know that you're obviously an exceedingly talented political analyst and you focus on what actually is happening and why what has happened has happened and you don't have a crystal ball but if you had to kind of take a guess how is this going to play out? Is there going to be compromise? Is this just going to get ramped through. What would the left do if that does happen? Do you have any sense of where the country is headed?
Five years ago I would have had a very easy answer. There was a rule to how these things work. You start out as a radical proposition. You get pulled into the center. And once you pass this thing in the center, even if there's a lot of rhetoric and posturing, 75% of the Knesset and 75% of the country basically agree with whatever passes. You saw that in the nation state law. There were some things in there that were really just about the West Bank or about certain kinds of economic policies. All of these, what we call in Hebrew goats, azim, which is to say distractions put into it like, look a goat, right? Distractions put into the bill so that they could be taken out and you preserve the core. I would have told you that that's what's happening here. But we are now in a different period and we're in a period where Netanyahu's position, in some sense he's very powerful. He just won this election. After 44 months, really of deadlock, he finally wins that fifth election. But at the same time, he's also very weak. And it's a very interesting dynamic inside the Likud Party he is absolutely indomitable and unassailable and that has weakened him in the coalition. And you saw that in the coalition negotiations where Likud just gave away the store. Every major policy arena, every major ministry, all the big things that really matter from the finance, the running of the economy. There's now a new Knesset committee established called the Reforms Committee, which will essentially write half the budget bill that is controlled by Smotrich, who is also Finance Minister. The ultra-Orthodox took over all Interior policy. The Interior Ministry, the Negev and Galilee Ministry, the relevant Knesset committees. And so Likud actually in those coalition negotiations surrendered just about everything. Netanyahu is still essentially in charge of Iran policy. That's his big thing that he's in charge of. And if you have a true believer, a real crusader in this government who tells Netanyahu, who's willing to go home, in other words, who tells Netanyahu, either you let me do this or I leave. Netanyahu essentially caves to everything. Yariv Levin has done that inside Likud, Smotrich and Ben-Gvir and Deri and Goldknopf, these are all the heads of the political parties who are allies of Netanyahu have gotten things that just don't fit.
They would not have gotten them five years ago in a coalition negotiation with Netanyahu. And so, Netanyahu couldn't even argue in the coalition negotiations, “Hey, I've got to satisfy the demands of my Likud guys over here on my bench. So, I can't give you the Finance Ministry”, which historically Likud tried to keep for itself. I can't give you these major positions because Israel Katz will be angry at me because all these Likudniks nicks will be angry at me. And so, you end up having now a situation in which Netanyahu looks very powerful. There's no one inside Likud who can overthrow him. He's the only leader around which the right religious coalition can coalesce. And absolutely everyone in his coalition can get from him anything they want. Netanyahu went on Jordan Peterson's podcast and Bari Weiss's podcast in America to talk to that sort of liberal conservatism world that he feels himself very much identifies with for many, many years. And he went down there, and he told them, “Don't worry about all these terrible things you've heard about Itamar Ben-Gvir and support for terrorism or Avi Maoz and his anti LGBT agenda, because I am Netanyahu and I am still going to be in charge, and it's going to be my government, and I will rein them in if I need to rein them in.”
By the way, he won't interview with the Israeli press. He wouldn't interview with any members of the Israeli press over the course of the entire election campaign and since, that don't work for him, in other words, that aren't Channel 14, which is his own basically channel, or the Israel Hayom newspaper, which supported him for many, many years. And so, he went on there and he said that. Now he won't say that in Israel because we're watching. One of the reasons he won't talk to us is that we're watching the opposite happen. We're watching Ben-Gvir get whatever he wants. We're watching Avi Maoz get whatever he wants. And so now if you were to say to me, how will this play out? Will Netanyahu eventually pull this to the center? Will the left manage to negotiate to the center? There's been a little bit of noise that way in the last week. Netanyahu said we're going to reach a middle ground. And Levin said he got to stop talking about the end of democracy and start talking about the substance. It's a nice thing for him to say to the left, but what does that mean? Okay, let's start talking about substance. Let's hear the Likud argument for completely canceling reasonableness as a judicial test. And so, I don't know. That was my long way of saying I don't know. But I don't know in an important way. I'm not sure that this government isn't a government that because of its internal weaknesses, they look like strong from the outside, but internally or weak doesn't have to just run down every rabbit hole of any ideologue in this government, in fact, works for the extreme ideologues who can step away. 64 seats is a big majority when it's 64 to 56. It's not that big a majority when even the most extreme faction has five seats and can lose you that that majority. And so, is Netanyahu really in charge? Is he very strong as he looks on paper or actually very weak? This is going to be a big test, and it's a shame that this is the test. This is one of the most important things the government will do in the history of the country with real historical significance. We're basically going to find out who's in charge, essentially, on this issue.
Sobering, but exceedingly important and very helpful to us and to listeners in laying out the entire terrain of what's going on, what the issues are, what the battles are about, and how, in some ways, this might play out. For everything that you've been writing over these years and for our conversation today, we are hugely grateful to you for your insight and your wisdom. We thank you for taking the time and we look forward to our next conversation.
Thank you. Thank you for having me.
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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Is a "Constitutional Crisis" brewing over Judicial Reform