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 unreaso…
