Judge Barbara M. Lynn has many “firsts” to her credit— she was the first woman member of the Jefferson Literary and Debating Society at the University of Virginia, where she did her undergraduate studies. She was the first woman associate and later the first female partner at her firm, Carrington, Coleman, Sloman & Blumenthal LLP, a position she held after graduating from SMU’s Dedman School of Law in Dallas in 1976 (and finishing first in her class). Judge Lynn also served as the first female chief judge in Texas when she served as chief judge of the U.S. District Court for the Northern District of Texas. She was nominated to the federal bench in 1999 by President Bill Clinton.
Judge Lynn is also the president of the American Inns of Court. American Inns of Court is a consortium of lawyers, judges and other legal professionals who are dedicated to improving the skills, professionalism and ethics of the bench and the bar. They hold regular meetings to discuss current legal issues and concerns, exchange advice and build on professional relationships. It was at one of these meetings, in Southern California, that Judge Lynn spoke about the importance of what is transpiring in Israel for democracies across the globe.
An attorney friend of mine, who attended Judge Lynn’s lecture at the meeting of the American Inns of Court, wrote me to say he thought it was extraordinary that the happenings in Israel had made their way into the internal discourse of lawyers and judges in the United States. I agreed. So I reached out to Judge Lynn, who could not have been more gracious, and she agreed to speak with us about what she had said.
In this conversation, Judge Lynn speaks to us as a private citizen (though a deeply knowledgable and highly educated one!), not in her role as a judge. We do not often reach out to people from other countries who are not somehow directly involved in issues related to Israel, but her comments struck us as such an interesting new dimension on this complex issue that we decided to make her conversation with us available to all readers of Israel from the Inside.
The link at the top of this page will take you to the full recording of our conversation; below is a transcript for those who prefer to read.
Tomorrow, Wednesday, we hear from Professor Michal Muszkat-Barkan, who in addition to her academic work and research, has become one of the leaders of the Jerusalem protests. Just days away from what may be a critical vote in the Knesset on the first piece of judicial reform legislation to actually become law, we learn how a private citizen ended up becoming so central to the “resistance,” what are some of the complex decisions the leaders of the protests have had to take, and where she sees the protest movement taking Israel in the future.
That interview will be posted tomorrow, for paid subscribers to Israel from the Inside.
We have a very special and unusual conversation today, and as a way of introducing it, a brief story. I have a friend in Southern California whom I've known for probably 30 years, he happens to be a very successful attorney. We'll call him Brian, perhaps because that's actually his name. And Brian wrote me a couple of months ago, and he said that he is a member of an organization in the United States called American Inns of Court, and that he had just heard a lecture by Judge Barbara M. G. Lynn, who, in addition to being formerly the Chief Judge of the Northern District of Texas, the first female chief in Texas, I should point out, also serves as the president of the American Inns of Court. Now, if you're not a lawyer like I'm not, and you don't know anything about the American Inns of Court Foundation, as I did not, it's a fascinating organization dedicated to civility, professionalism, and excellence in the legal profession. And it's something that I dare say, I said to Judge Lynn before, if she gets some time on her hands and wants to come create the same thing in Israel here, I will personally meet her at the airport. But in any event, my friend Brian told me that in the course of a lecture to the Southern Californian particular area where he lives, Judge Lynn from Texas gave a lecture in which she said, that what's going to happen with Israeli democracy as a part of the whole issue of Israeli judicial reform could have an impact on democracy around the world.
Brian and I were just simply having a purely social conversation, and he mentioned this lecture, and it stopped me in my tracks. I mean, what is a chief judge of the Northern District of Texas speaking to a bunch of American lawyers in Southern California saying, what happens in Israel could have an impact on democracy far beyond the borders of Israel? It struck me as such a fascinating proposition that I asked Brian to put us in touch. Judge Lynn could not have been more gracious and forthcoming in her willingness to speak with us.
So, Judge Lynn, first of all, thank you very much for taking the time. I will just say quickly, you are a summa cum laude graduate of the University of Virginia. You graduated first in your class at SMU's Dedman School of Law ‘76. You were in a Dallas law firm of Carrington, Coleman, Sloman and Blumenthal, and remained there until you took the bench in the year 2000. So, it's an extraordinary career, very impressive, with a very long biography, which we will include parts of in our written introduction. Thank you for your time and I'm all ears. Explain to us the comment about Israeli democracy and its outsized impact on world democracy.
Well, I should begin by saying I'm speaking to you and your audience just as a private person. I’m not wearing my official hat as a federal district judge, but as I am a news junkie, I follow the news freely and am very interested in things relating to Israel. I have several relatives in Israel, and Israel holds a special spot in my heart. So, I have followed with great interest the subject of judicial reform and particularly the reaction of much of the Israeli public to the efforts in this regard and their expressed concern about what these reforms mean to democracy in Israel. So, if you will indulge me, let me begin with a very abbreviated discussion of the contrast between Israel and issues of judicial independence and the situation in the United States with respect to judicial independence. The critical difference, of course, is that we here in the United States have a written constitution. You in Israel do not have a written constitution, and there have been substitutes for it, essentially the Basic Laws. So, because we do not have a constitution in Israel, the Supreme Court in particular has evolved to a point where it sees itself as protecting the Israeli public from excesses of the executive and legislative branches.
Now, in the United States, that concept, judicial review was foreshadowed by Alexander Hamilton in one of the documents essential to the creation of the Constitution, the Federalist Papers. For those among your audience who might want to look at it, it's Federalist Paper number 78, again authored by Alexander Hamilton, that talks about the judiciary being able to review actions of the executive and the legislative branch as part of a fairly elaborate system in the American system of checks and balances.
Now, in Israel, in contrast, that had to evolve. Now, when I talk about the impact on democracy of these judicial reforms, were they implemented, I think I need to be a little bit more specific about what I mean by democracy. I think all of us would agree that in a democratic system, the majority selects its leaders. In most systems, at least in the federal system here in Texas, not so in the state system, but that's a discussion for another day, the people do not select their judges. They are selected through a fairly elaborate system of nomination by the President and confirmation by the United States Senate. But the people do not directly elect their judges, nor do they do so in Israel. So, the process of selecting judges is not part of democracy in that very narrow sense of the people selecting their leaders. But they do select others who are involved in the process of selecting judges, as they do here in the United States. But I go to step two in what I mean by a democracy. And by a democracy I mean a political body that protects the rights of the minority, not just the majority. So here in the United States, I think those politicians who adhere to good principles of good government would see themselves once elected as representing all of their constituents, not just the constituents who elected them. So, in most democracies or entities that call themselves democracies in the world, this issue of protection of the minority is critically important.
Now, I do not pretend to be an expert on the details of judicial reform, and I will say that the reporting about the details of judicial reform is quite uneven, at least the publications that I read. But as I understand it, coincidentally this very week that we are having this conversation, the judicial reforms are back on the table. And the concern that many have about the judicial reforms is that they adhere to one aspect of democracy, but not the other. So, for example, it is my understanding that if the judicial reforms that are contemplated go through, the Knesset, 61, a one vote majority out of the 120 members of the Knesset could overrule a decision of the Supreme Court of Israel. So that reinstates this principle of majority rule, but is very risky in terms of protecting the minority. So it is that concern that I think is very important in terms of talking about what this potential means for other democracies. The really quite extraordinary number of people who have shown up to protest against these reforms is really quite astonishing. As you were saying before we started this morning, you have a country of 9 million people and several hundred thousand people have been showing up regularly to protest these reforms. Now, I'm not naive, so I don't think that every one of those 200,000 people knows the details of the judicial reforms that are being contemplated. But what I do know is that they are concerned about a system that allows the other branches of government to act with impunity and potentially thereby injure the rights of the minority. That is critically important to people throughout the world because in a democracy, the essential basic human rights which again in Israel are protected by the basic laws, and in the United States are protected by the constitution, are in fact protected in large part by the judiciary.
If the prerogative of the judiciary to continue to do that is taken away, I think other countries will be very nervous that their nations too might move to autocratic government as opposed to a democracy that protects the minority. So that's a short version of the concern that I have I think that what is happening in Israel is being watched very closely across the world. As you well know, diplomats in Israeli posts around the world joined in the strike and that got attention throughout the world. So, it's very different.
I will close my introductory comments by saying, in my view, it is very different to make a judgment at the front end of creating a political system not to have certain aspects of judicial review. I'll give an example. The United Kingdom, which is certainly a successful means of government, and they don't have judicial review. So, you don't have a body that can declare unconstitutional, again, they don't have a constitution either, but they do not have a system like we do or like Israel has evolved to have of judicial review. But it's quite one thing to create a system that doesn't have those features than it is to take it away because people feel a vested right in a system that protects all of them, the majority and the minority, from excesses of government. And that risk is even further enhanced in a parliamentary system where the executive branch and the legislative branch, the divisions between them are blurry, if not nonexistent. In the United States, we really do have a robust three-party kind of governmental system, three branches of government that they're not wholly independent of each other and they are interdependent upon each other. But there is an elaborate system that creates a system, as I said, of checks and balances, thereby discouraging and if it occurs, eliminating excesses of one over the other.
That's fascinating. It's a very, very helpful introduction. You were kind to Israel by saying that the boundaries between the executive and the legislative are blurry. Not only did they not basically exist at all, we have here a unicameral parliament as opposed to a bicameral parliament. So even in England, for example, which you mentioned, there is at least the House of Lords which can slow down some legislation even if at the end of the day it can't put an absolute stop to it. So, our system might be even more vulnerable in that regard. Now, over the course of the many months that this has been going on, I was at the protest last night and they proclaimed this was week 25. I thought it was 27, but I guess we've lost count in all these protests. But in the course of really more than about a half a year that this has been going on, we have had on this podcast a number of people come to speak about it. We've had authors of the actual proposed judicial reform come and explain why it's perfectly in keeping with liberal democracy. We've had deans of law schools come and explain why it would be the end of liberal democracy. We've had people in the middle. So, we have heard from very, very bright and thoughtful people on all different sides. And just for the sake of being fair to our listeners, I will point out that I happen to lean very, very strongly in the direction that you articulated, which is that these reforms would be very problematic for Israel's liberal democracy and the protection of minorities in particular. And one of the examples that we've given in the past and I'll just reiterate it once again is that by a simple majority, the Israeli Knesset, for example, could decide to close tomorrow all the mosques or all the non-Orthodox synagogues in Israel just pass a law. Now the defenders of the proposed reform say, “Yeah, but it's not that simple because the next Knesset would actually have to give another stamp of approval to that law, or the law would fall”. But that of course, to me at least, is very slim, it’s a very thin consolation because we don't know when our next elections are. But assuming that they're on schedule three and a half, four years from now, you don't want to live in a country in which a whole series of houses of worship have been closed because of the predilections of one particular government.
So, it's very complicated what would the different proposals of the judicial reform actually allow in terms of judicial review and all of that, but I want to talk about America other liberal democracies and Israel's implication, the implication of what happens in Israel for that, because that's what struck me as being really fascinating about what you are saying because we know that the world is watching. We know that diplomats all over the world are watching. We know that Moody’s is watching, and that Bloomberg is watching, and that SNP is watching. And there are even rumors here in Israel that SNP was about to downgrade Israel's rating when they were given assurances, whatever that even means I don't know, that this is not going to go through. So don't downgrade us because you're going to see this is going to work out okay. That's what I've been told by somebody in the know. But I can't vouch for its veracity. I can only say that it's a widely held view on the inside here. So, we know that we're being watched closely by other countries for a whole array of reasons because of technological reasons, economic reasons, diplomatic reasons. But why would countries around the world be more worried about what happens in Israel, for example, than what happened in Poland or in Hungary? Or why would countries that have stable liberal democracies say, oh my God, what happens in that little country tucked away between Syria and Egypt, a country with a population more or less the size of New York, why would that have any implication beyond Israel's borders? Why would it not just be seen as steps taken by a peculiar democracy in a complicated part of the world that have no bearing on anybody else?
Well, I think Israel is held up in many ways as a model in terms of its political system. And when the political system does not satisfy those high expectations which have been set for it, people are watching. But more particularly, I think, as I indicated in my opening remarks, it's a quite significant thing when there is a change in a set up for a government and Israel evolved to the system that it has. Now, if you're on the losing end of decisions, you want to see things change fundamentally. And I'm going to come back to this because it certainly does have repercussions in the United States. But I think that people around the world are concerned about a democracy that is evolving to a point that it creates more and more power in the executive and or the legislative branch. And in the case of Israel, that's the same thing. As you rightly pointed out, because this comment is not intended to be a political comment. I'm not going to say anything about the prime minister and my personal views of him at all. But there's no question that these changes would enhance dramatically the power of the prime minister in this administration and in future administrations. And that accumulation of power in the executive is at odds with the aspects of the democracy that I have mentioned. And essentially this is particularly problematic when, like the United States, I think it's fair to say that Israel is quite divided, seemingly evenly divided, at least in terms of the election, if not how the people actually feel. And so, the combination of a change in a system that prevents excellence by its very nature and accumulates power in the hands of the executive, who then is in control of the legislature, I think is and should be a matter of great concern for democracies across the globe. We have seen a move toward totalitarian regimes. And again, I'm not making any accusations with respect to the prime minister or speaking in that context of Israel, but there are many heads of nations in the world or those who aspire to be that, who would like to accumulate more and more power. Traditionally in democracies, the judiciary is a thorn in the side of those who want to do so. Often the judiciary has prevented the worst excesses from coming to fruition. And if it is very easy to swat the judiciary away and put them in their place, if you will, that has a profound risk, creates a profound risk for democracies throughout the world that that can happen to them too. That the fact that a head of state is elected by the scarcest majority may mean that what they say goes for everybody and they do not see themselves as representing all the citizens, but only those citizens who supported them. And if that's the way they approach their positions without the judiciary providing a check for that, this aspect of democracy that I mentioned at the beginning that is so vital to its success, protection of the minority has the potential for going out the window. So, I can't think of a recent example of a nation that adheres to democratic principles, that is talking about taking away the fundamental aspects of judicial protection against excess. That to me, is a unique thing that has happened in my adult lifetime. And so, I think it bears watching and being concerned about it for the future.
Now, I'll take just a minute, if I may, to talk about aspects of projected reform in the United States. So, there are a lot of people in this country who do not like decisions of our highest court, particularly when they are interpreting the Constitution in terms of words that are not actually in the document but might be implied, and when they are unhappy with the result. There have been a number of calls for reform of the Supreme Court, of the United States here, expanding the number of justices as an example of that. President Biden created a bipartisan commission to study potential reforms of the United States Supreme Court, and even they could not come to a consensus. And I think a lot of people, and I will include myself in this are concerned about radical reform. Even if people are unhappy right now, that radically reforming an institution which overall has worked well for us for several hundred years, it might not be the best thing for our democracy to try to throw it out and start again.
But in the course of the years that you've been in the legal system, first as a practicing attorney, then as a judge, and so on and so forth, similar changes have taken place, for example, in Hungary and in Poland in very similar ways, in which the power of the court was slowly eroded. And then the chief executive used the power of the legislature, unimpeded by the court, to make dramatic changes. And before you know it, people in both Hungary and Poland would say they woke up and they were living in a very different kind of a country. Why do you think it is that the world has its eyes on Israel in a way that it didn't have its eyes on Poland and Hungary, Turkey to a lesser extent also, but that's different, I think. Or am I wrong? Do you think… were jurisprudential thinkers like yourself watching Poland and Hungary with the same level of concern and speaking about it to the same degree that they're speaking about Israel? Or is Israel somehow playing an outsized role in all of this? And if it is, why?
Well, I think you rightly corrected me. I overstated my position. But Hungary and Poland were, hopefully still are, fledgling democracies. These changes occurred over a much shorter period of time where the rights of an independent judiciary were not as deeply enshrined as they have been in Israel. So that is the distinction that I would make. They come out of the Eastern bloc, things were different in the past when they were communist countries, and they have struggled over the creation of a workable system. But you're right, those are examples of what can happen in an instant to change what I think enshrines freedom. And I mean by freedom. Not that everybody gets to do what they want, but the minority are not prevented from doing what citizens in a free country ought to be able to do. So, I think you're right in pointing out that there are shorter term examples where a strong man government comes into effect and recognizes that the greatest threat to continuity of an autocratic system is to suppress the judiciary getting in the way. And that did happen in Poland, it did happen in Hungary. And I think there are a few other examples of that short term change, which I think is also very negative. But this is a fundamental change that is being made in front of the whole world with people having the opportunity to protest that. And that combination of people rising up and wanting to protect the rights that they have had through the concept of judicial review is really quite a compelling picture for people to see. So, this is being played out in public, not behind closed doors as it has been in other countries.
Fascinating. There were a lot of protests in Poland, by the way. One of the fascinating things that we've seen on Israeli social media are messages to us Israelis in English most of the time, sent over Twitter or whatever version of social media where people are saying, don't allow to happen to you what happened to us, which was that they wore us down. In other words, they kept us going and at a certain point it gets cold. People have to go back to work. People stopped going to the streets. And more than one person was recorded in English speaking to Israelis saying, you got to stick it out. You got to hold out for as long as you need to, because we eventually stopped protesting and then we found ourselves living in a very different kind of a country. And Judge Lynn, you pointed out at the beginning of our conversation that as we're having this conversation today, the reform is in fact back on the legislative table in Israel. And I suspect that part of what Bibi Netanyahu was actually trying to test is have they gotten tired? He's going to start with one of the less objectionable elements of the reform, which is what's called the reasonability clause, which in and of itself is a little bit complicated. And everybody acknowledges that's the least dangerous change. So, he figures if I can get that through, maybe I can sort of grease the wheels a bit. So, I think there is cause for us Israelis to be concerned by looking at the Polish and Hungarian examples…
I agree.
Even though you're quite right. You're quite right, of course, that they come from the Soviet bloc, and we come from the Western Hemisphere. Let me ask you a question about… oh, go ahead, please.
Well, I just wanted to say that that is one of the profound benefits of the Internet, that we don't have borders that cannot be pierced in terms of communication except in those countries that suppress the Internet. But the support that those who are interested in blocking reforms that they regard, rightly or wrongly, as anti-democratic from others who have had similar experiences, I think is vital to motivating people. You are right. Protest is tedious. Hot, cold, difficult, gets in the way, and a minor victory can make people go home, and then they don't realize that they still need to be there. So, I agree with everything you've said.
It's actually fascinating, by the way. You're saying they're hot, they're cold. I was at the protest last night in Jerusalem. It was a hot Saturday night, and a lot of people out there in shorts and T shirts. And I was reminded that when these protests started, we were in parkas and wool hats and gloves. And so, the mere fact that the clothing has changed so much as a kind of a reminder to all of us how long this has actually been going on. And the social media thing I'll just mention since you mentioned it, I think people outside Israel may not be entirely clear about what a profound role social media is playing in organizing these protests. Many of us are on numerous WhatsApp groups where not only do they tell you that the protest on Saturday night in Tel Aviv starts at 7:30, and in Jerusalem it starts at 8:30, and then after Saturday night, when the drone goes over, they tell you how many people were there… that’s simple. What Israel has, what a lot of people protesting here have done, and many people find it objectionable. And I could make an argument on either side, so we're not going to go there right now. But they have been hounding all the members of the Likud Party who are in favor of the reform. They haven't been harming them, but they have been making their lives fairly miserable by being outside their houses and accompanying them as they take their kids to school and shrieking, whistles and this and that. How do we know where they are? Because one person spots them, and then it goes out over the WhatsApp groups that we have. And so social media has become a very powerful force here. Some say highly overused and unfairly so, and some would say key to democracy. But your mention of social media, I think, is very apt.
Let me ask you, by way of beginning to wrap up our conversation something about the implications of what's going on in Israel as you see it as an American lawyer, judge, thinker about jurisprudence and so forth. How does this play out? Do you think that there is a greater chance that watching Israelis protest in the streets week after week, month after month, would inspire people, let's say in the United States or in other Western liberal democracies, to hold tight and not allow those changes to happen? Or is there a greater likelihood that legislators would say, look, even in a country like Israel, which had a fairly robust democratic foundation, they were able to push it through. So, if we want to be able to make changes here, we watched what happened in Israel. They just wore them down and eventually they got it through. In other words, are you as now, again, speaking not as a judge and not as an attorney, but just a thoughtful person looking as a news junkie at this whole issue, are you more inclined to think, wow, this is going to inspire the resisters to change or do you think this is going to embolden those who would like to make change?
I think change in our country in terms of the composition and jurisdiction of the United States Supreme Court would be exceedingly difficult to achieve. So, at this point I'm not prepared to say that what is happening in Israel would have a profound impact either way. At the moment, the conservatives in our country are quite satisfied with the direction of the Supreme Court. I think the more liberal members of our society are not. But times change because our justices, although they serve for life, if they choose to do so, everybody gets old and everybody passes away at some point. So, things change. You can't see the future. I think despite some unhappiness, particularly I'll mention the applicability of Canons of Ethics to members of the Supreme Court. I think that is an area where there could very well be reform and I think there is a mood among the members of the general public that that would be advisable. That could happen. I think that's a realistic thing that could happen. And I think that's slightly influenced by things that are happening in Israel. But generally speaking, at this juncture, I think people are watching it just to see that people can have a role in their democracy.
That is significant with large scale protests that do not involve violence. That is a critically important part of a successful democracy and I think whichever side of the fence a person here watching is on, that is something profound to take away. I know that those who think judicial reforms of the type that are being advocated are appropriate are also protesting. So, there is a large-scale attention to issues that matter, to the future of democracy and how Israel implements that. And I think that is a good thing that people are engaged because apathy, in my judgment, should be a cause for concern. That's when bad things happen, when people are not watching what is going on with their government, that's when steps too far are often taken.
As an American citizen in addition to being an Israeli, a person who spent a lot, a lot of years living in the States before my family moved to Israel a few decades ago. I would say that not only do I agree completely with what you're saying, there's two other pieces that I would love to see future protesters in America take with them from what's happening here. First, you mentioned already the lack of violence. And again, the proportion of numbers in a country of only 9 million people that over the course of the cumulative number of weeks of protesting, many millions of people have come out to protest and there's been basically zero acts of vandalism. There was one case when the offices of the think tank that has been propelling these proposals forward were ransacked, and that was totally unacceptable. It happened once. It never happened again. And there was, I think, two instances of the use of too much police force. One was a stun grenade that was thrown. No one was really injured, but it was considered to be very, very unacceptable here. And there was one case where a policeman on a horse used a bit more violence, force against a woman protester. She wasn't injured, thankfully. So, the one thing that I would say is that, first of all, that there has been relative, I mean, virtually zero violence or use of force on either side police or protesters here, which is really an extraordinary thing. I think back to what transpired in Portland and in Seattle in the United States a few years ago, which was just devastating and just heartbreaking. No matter how legitimate the sense of frustration might have been on either side here, I would hope that Israel would be a model to the world that people would say, no matter how deep my grievance is, look over there, that crazy little country which is not known for being under spoken or soft spoken. Look how they did it. And the other point that I would perhaps make, which I think has also been very inspiring to me here, is that the flag has become the symbol of both sides of the protests. In other words, in Portland and Seattle, the protesters were not carrying around American flags. They were not doing what they were doing out of a love of country. They had a whole set of grievances, which we can discuss at some other point in time, some legit, perhaps, some not. But whatever the case may be, they were not protesting as a statement of the love of their country. And I think that what you see here that's very moving, quite frankly, is that even when there are opposing protests on both sides of the street, often they're both holding Israeli flags. They're using megaphones and they're trying to out scream each other. And they're saying sometimes some not very nice things, to be sure, but they are nonviolent and they're all saying we're doing this because we love our country. And if there's something that Israel could actually inspire the world with, I would hope that it would be that as well. But again, it had never occurred to me until my friend Brian heard you speak at the American Inns of Court, that it never occurred to me at all that leading lawyers, judges, jurisprudential thinkers in the United States would be watching Israel out of more than mere curiosity. They would be watching it with a sense that what happens here has implications for the world far beyond us. That struck me as really being very, very interesting, and to hear it from the person herself who said it is a privilege for me and for all of our listeners to hear a person of your stature in the legal community is a gift, no matter what. So, I am really very grateful to you for responding to my request that we talk, for teaching all of us what you've taught us. I thank you for that, and I look forward very much to an opportunity to being able to thank you in person when you visit Israel, or I come back to Texas next time.
Thank you. It's been a joy.
Impossible Takes Longer is now available on Amazon and Barnes & Noble and at other booksellers.
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:
Our twitter feed is here; feel free to join there, too.
Our Threads feed is danielgordis. We’ll start to use it more shortly.
What will happen in Israel "is, and should be, of great concern for democracies across the globe"