Backing Bibi: Israel’s Judicial Overreaction

>> Tom Church: This is the Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined by the libertarian, Professor Richard Epstein. Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's also the Laurence A Tisch professor of law at NYU and a senior lecturer at the University of Chicago.

Richard, today I thought we'd go outside the United States to focus on the controversial judicial overhaul plan in Israel championed by their prime minister, Bibi Netanyahu. One petition signed by dozens of eminent economists here in the United States said that the reforms would, and I'll quote, weaken the independence of their judiciary and its power to constrain governmental actions.

Now, supporters say, well, actually, Richard, that's where you come in, as you did write an op-ed in the Wall Street Journal this year with Max Raskin, at least in part defending the proposed reform. So can you give me some background on the fight that's going on here and what your position is?

>> Richard Epstein: Yes, well, I mean, I think the answer to the question is this, will this weaken the power of the judiciary? Answer to that question is surely yes. But the harder question is that with justification for that kind of a move, or is there no justification for that move?

And in order to understand that, what you have to do is to know what the current position is. And one of the great tragedies when you see the economist letter and the lawyer's letter and everybody else's letter is what they do is they simply announce that this is a threat to democratic institution.

But they never explain why it is when you try to increase the power of the executive and the Knesset, which is the democratic part of the system, the prime minister, why it is that is a threat to democracy. So the situation started in 1953. Israel is a new country.

It does have a Supreme Court with 15 members. This Supreme Court does not have any powers of constitutional review. That is not unusual, particularly if you come out of Britain, because the british Supreme Court, established around 2009, also has no constitutional powers whatsoever. And so the situation was that they had a committee to appoint Supreme Court justices, which had nine members.

The key point of this is that three of the members had to be sitting justices of the United States of the Israeli Supreme Court, and you needed seven votes in order to get the new appointment through. So unless you had the three judges, or at least one of them, you couldn't make an appointment.

And it turns out that these were not random appointments picked by lot. They were basically picked, I think, by the chief justice. And they always vote in unison so essentially, the Supreme Court has a veto of its new members. What happened in the original reform was that you have the situation where the three unified Supreme Court justices can block anybody from getting on the court that the political branches want to nominate.

It's as if in the United States when Joe Biden announces that he wants to appoint Ketanji Jackson, Justice Roberts gets two of his cronies, and they decide to veto the appointment. And so when we're talking about independence of the judiciary, nobody has ever meant in the United States that that allows you to essentially block the political branches, the President, and the Senate from making the appointment.

What it does is it tries to do something to guarantee that they're gonna be beyond political influence once they're appointed. So it's a checks and balance system. The Israeli system doesn't do that at all. So they give an extraordinarily broad definition of what counts as the independence of the judiciary.

Now, this is doubly compounded because when somewhere in the 1990s, a very powerful mind still alive named Aharon Barak essentially transformed the Israeli Supreme Court. No longer was it a court that did with technical issues where you don't mind them having that kind of monopoly, but now it had became a constitutional court.

There is no constitution in Israel. There are a bunch of statutes which can be cobbled together to be called something like a special law. One of the key statutes was passed by a minority member vote, not even 61 members, because it was a relatively incidental thing. And what happens is the Israeli Supreme Court unilaterally has made itself much more powerful on judicial review than the United States Supreme Court.

And so to take one of the most important situation in the United States, if you have a matter which is thought to have delicate political concern, no longer is it a question of judicial supremacy. And now there is essentially a doctrine which says that you have to defer to the political branches of the government.

So if it turns out the secretary of state tells the Supreme Court in a brief or some kind of a filing that we don't want to have a situation where, say, Saudi Arabia is going to be sued for price fixing in American courts because we have to deal with them politically, essentially what will happen is the united states courts will back off of that situation and give the State Department the control in Israel.

That is not the case. The Supreme Court there, which has no explicit authority, has no expressed restraints. So anybody can ask that you have an intervention on one of these things, and then what you could do is say, well, you want to not make a deal with somebody.

You have to make a deal with somebody, or you can't make this deal with Lebanon with respect to the division of oil territories and so forth. So the situation is essentially one in which the court has complete dominance over the other political institutions in some areas, like contracts.

It turns out they're not very good contracts lawyer. But even when the legislature tries to go back to what we call an objective theory of contract, the Israeli Supreme Court say, no, we don't like that particular statute. We prefer to do it our way. What's the standard they use?

It's the standard of reasonableness. What's the question of what reasonableness? It's whatever is pleasing unto them. This is not a bound inquiry like it is in the law of patents and so forth. You know what the trade-offs are. It's an absolute open assessment. And so what happened is the conservative block gets into power, and they clearly want to change the system.

And what has happened is there are two debates going on. One is the debate over the particular provisions. The one I did not mention is the question of whether the Knesset could override the judicial system. They did it by simple majority, but you could say it has to be by 55% or something like that, and imitate the canadian system on this particular point.

So it gets there. There's that debate. But the political debate has been completely different. What has happened is it's pretty clear that the demographics in Israel are shifting so that the country is becoming more conservative, and a significant fraction is becoming more religious. So essentially what's happening is you get the progressives coming out because they believe they will not be able to elect prime ministers and they won't be able to control the Knesset.

So they think that the court is the one last refuge to keep their positions in power. So it's a kind of a proxy battle. What we're worried about is not this narrow reform, but a situation where the tide turns radically in the opposite direction. I should disclose that I am the head of the foreign oversight committee of the Israeli Law and Liberty.

That's the Hayekian phrase, which is trying to examine these things. And we've written a number of position papers trying to stay away from the political issues, explaining why there's some degree of judicial reform is needed. And one of them by a parent named Jonathan Green contains a few points where I disagree with him.

But it's a masterly exposition of why it is that this system is, in fact, very far off the rails. And it was written before the current contretemps have happened. So when I start seeing people say that you change the way in which the Supreme Court nominees are done or that it's gonna end Israel, that you have to withdraw foreign capital, that the military, what not, to perform some of its functions and so forth, that the Mossad ought to intervene in some way on behalf of the court.

This is just a wild overreaction, and it's a real disgrace, because what it does is it puts the entire nation at risk when what was needed from the outset is a situation where the two sides start to bargain. If you think the current system is unsatisfactory, as I do, with respect to judicial nominees, well, you may not expand it to nine, from nine to eleven.

You may go to 13. You may change the mix. There are a lot of things that you can start to do that can break the monopoly power that you currently see without creating a complete maelstrom on the other side. And so what you really have to do is to kind of get away from this political debate and talk in quiet about it.

But from the beginning, all of these statements that were attacking people like Thomas Friedman in the New York Times and the various economist letter said, this is the end of civilization in Israel if it goes that way. And it's extremely difficult to negotiate any sign of a sensible solution when it turns out that the opposition is so extreme in what it states that it's not clear that you have any wiggle room in order to negotiate at all.

And so I was asked to sign a lawyer's letter, which was signed by, I don't know, close to 100 of my national colleagues protesting this. And I called up and said, I'm not signing this. I mean, I think that reform is needed and that you should think that as well.

So why are you writing this kind of extreme letter which says that we can't do anything? That has become the basic challenge in this case. Opposition is not responsible when it overstates the intensity and the extremity of its own views. What they have to do is to say, look at each of the particular proposals as they come forth and say, this is wrong for the following reason, and then try to figure out how you negotiate some kind of a compromise position with respect to them.

There is nothing about this issue which is remotely consequential in the sense that it's going to make or break Israeli democracy. If one were to think the way that we're doing on this, we would say, my God, if we appoint one more liberal or one more conservative judge, the United States Constitution will come to a grinding hall.

We don't want to say that here. And in fact, the strongest criticism that one has, particularly of the left in the United States, is their opposition to people who are appointed are so extreme, that it bears no relationship to reality. Recall the kind of response to Justice Kavanaugh when he went on the Supreme Court, semi-hysterical.

If you're trying to figure out where it is that he lines up on the sequence, he's in the middle of the pack. There are the three left wing judges, then there's probably the Chief Justice, and the next to him is Kavanaugh. Before you get in some order, Thomas, Alito, and Barrett, and Gorsuch on the other side.

In fact, the conservative side is much less unified in the United States than is the liberal side, because there are all sorts of different variations on a whole variety of issues. Think of Chief Justice Roberts hold out on the abortion cases, where he thought that the political maelstrom would follow.

He was right about that fact. The question is whether that should stop somebody from getting rid of an obviously wrong ruling is a different kind of a fight. But it turns out if you start looking at American politics and Israeli politics, the things that's most disturbing about them is people are willing to go all in, in poker terms, over every issue, regardless of how serious it is.

And it's an extremely difficult strategy to fight, because you have to get to a battle of royal over a very small thing. And if the opposition moves first and is unified on that, then you're facing either abject surrender on the one hand or a blood fest on the other.

It's just the wrong way, the completely wrong way in which to conduct deliberations over the structure of a judicial body. Because we know from political theory that substantive rights are pretty easy to define uniformly across countries. But the appointment processes for judges for any kind of official, they vary widely across different places in different states, different reasons.

The British have a system which is different from the Canadians, which is different from the Americans, which is different from the Israeli, which is different from the Germans. So you could learn from other people, but you have to be more systematic in the way in which you try to approach this problem.

And on questions of distribution of powers, checks, and balances, and so forth, there is no one right answer. You could not use in Israel the kind of solution to use in the United States, because the country is too small to tolerate states. So a federalist system is not going to be very credible.

What the Israeli judiciary needs, I might add, is an intermediate set of courts, like the courts of appeals, so that everything doesn't go to the Supreme Court, where they then decide cases and panels, which means the luck of the draw can determine the way in which an important commercial ruling is going to come out.

So they've got a lot of things that they have to worry about, and they have to worry about them now, but they're not going to get any sensible discussion on that. If, in fact, they continue in this particular fashion to constantly polarize the country. Hopefully this has quieted down now.

Netanyahu waited too long in order to call off his troops. He made a mistake when he tried to fire his own defense minister, not because he was wrong on the question of whether or not a defense minister should speak out on judicial affairs like this, but because the political environment meant that the entire situation became more and more intolerable.

So he was right to back off and wrong to back off only after a delay. He should have done it soon, at least in my particular judgment. But I'm much more concerned with the merits of the issue. As an outside scholar, not a master of israeli politics. And the position papers, you've never seen a decent position paper put forward by the opposition defending the status quo, and that's a sign of just how political this debate has come.

>> Tom Church: Richard, when I think to the first time I heard about these proposals, I would say the arguments were focused a lot on the legislature being able to overturn the judiciary by a simple majority vote. No reform is obviously perfect, and you've laid out why the current system has maybe overstepped, but can you maybe walk me through what other parts of Netanyahu's proposals would you view critically?

Would you look at and say, I wish they'd change this instead?

>> Richard Epstein: Okay, well, I mean, one of the things about the override is it's actually more difficult to obtain than you might think. Because the override will come several years after the initial legislation is put into place so that the composition of the Knesset may change.

But I stated at the beginning that I thought it ought to be by more than a simple majority, the number I gave was 60% on the air. And I think, in retrospect, that's too high. You're never going to get 72 members in the Knesset, which is fractionated, to agree on anything.

So go back down to say something like 66, or to say that if you want to have something like this, you have to get a simple majority, but you have to do it in two successive parliaments, which is the way in which the Canadian override system starts to work.

The British have no constitutional protections through a Supreme Court, so you can have a long tradition where somehow or other the politics takes care of itself. And I've often had discussions. I remember one with a particular Englishman who came over, and he started to talk about the outrageous results in the English law.

Because if you simply told somebody that they couldn't develop their property at all because it was part of the green belt, and get away with it, he said, surely nothing like that could happen in the United States. And I said, you, have to understand, in America, the constitutional guarantees have been watered down with respect to property.

So regulations with respect to use are essentially presumption, presumptively legitimate, no matter how extreme they tend to go. There are ways to overcome this, but it's much harder than you might think. And what really has happened in the United States and England is even though they have very different legal regimes, the actual standards on the way you deal with particular cases of property and speech, for the most part, are pretty much the same.

There are notable exceptions. The Israeli, rather the English law is much more pro plaintiff and libel issues than the United States law is. But if you look at the Dominican case coming forward and a bunch of other cases, there's real pressure in the United States to say, look, if somebody makes an innocent mistake that they don't want to correct, which ruins the life of some other individual.

Why should they say that freedom of press basically authorizes the systematic misinformation being published by major outlines? And there was a proposal a couple of years ago, ten years ago, I think, now, which said what we really ought to do in defamation cases is require a defendant to publish an acknowledgement that they had made the mistake.

And that they therefore wish to correct it and no damages would be allowed. And that proposal was resisted by the press, and the argument about it was just precious. They said, if we are forced to make these kinds of public apology, it will ruin our reputation with the world at large.

But of course, the whole point was you have ruined the reputation of somebody else, and you did it in many cases deliberately and with knowledge of the falsehood. And now you're saying you could walk away with it without even acknowledgement of what's going on. So there are a lot of very contentious issues.

And it seems to me that we have to understand that in Western democracy, on the substantive issues, there tends to be a weak confluence of rights under these circumstances, even though you have very different constitutional regimes that are governing it. And roughly speaking, you're trying to figure out what the trend lines have been.

Property rights have to be devalued over the last 50 or 75 years, speech issues have gone both ways. Used to be political protest was protected until we now come up with the stuff about silencing speakers and so forth, and misinformation and disinformation coming forward, which is a huge battle here and everywhere else.

And I think it's fair to say that if you looked around the globe, the political discourse goes very rapidly from one place to another. And so that the legal structures may differ more than the actual substantive debates that start to take place. This should be a sign to warn you that when the Israelis make their particular change, the rule is not going to fall in.

It may well be that the religious parties want to have greater power and in a system of proportionate representation, small, pivotal groups do have that. But I think it's pretty fair to say that most of the quot is not consist of ultra orthodox people. And so if they try to really move extremely difficulties on these issues, there'll be a lot of resistance.

I'll mention one other thing which relates to the Trump situation. Netanyahu is now faced with a trial for corruption. And it turns out, in Israel, one of the things that has to change is the extraordinary absolute power that the attorney general has in basically controlling everything that takes place on judicial enforcement.

And Netanyahu cannot speak unless he gets his approval and things of that sort. And what happens is, when you put the charges in there and the attorney general wants to try them, what it does is it creates a real and fatal imbalance in the Israeli system. The moderates say, we can't basically join a commission or a coalition with a person who is under indictment.

So now, the only place that Netanyahu can go is to the right with the religious parties, which he has done. And what you want to do is you have a much better situation if you understand that making indictments for corruption sound familiar with respect to Trump and so forth.

These things are easy to charge, impossible to refute. And if you are the attorney general, you could let them linger on for a very long period of time. And the last thing you want is to have an extremely able and generally popular individual like Netanyahu, who has done many good things in his particular life.

Subject to limitations on what he can do, because you bring these kinds of charges. And I think, in effect, that the old system, pretty much uniformly everywhere, was that the political process would take care of derelictions with respect to duties. And the only time that you would start to deal with a criminal situation is when somebody was out of politics, which is not the case with Trump and is not the case with Netanyahu.

So that additional situation had created the coalition, which the people on the left find so distasteful. And if you had gone otherwise, and Netanyahu moved a little bit to the left towards the center, be fine. What the left and the progressives understand in Israel is given the change in the demographics, the rise of the Sephardic, the immigration of Russian Jews, African Jews, American Jews.

These groups are all more conservative than the traditional Israeli Ashkenazi groups, which always had a flirtation with socialism or with collectivism of one form or another. So they are essentially, they can't win the electoral battles anymore. And if anything, what has happened to most Israelis, and this is the real problem, is that the security issues have loomed even larger.

And what happened is once Obama double-crossed the Israelis in the United nations in December of 2016, everybody greets America with a kind of kid glove. Trump was a great ally of Israel and they appreciated that. But as they well understood, Trump is not represent American politics. And Biden has been just terrible with respect to the way in which he starts to deal with the these israeli issues, trying to undermine them in every conceivable way that he possibly can do.

And so that drives the Israelis, particularly those who worry about not only the Palestinian movement but also the Iranian movement, further and further away from the Democratic Party. I mean, it used to be a case when most American Jews were democratic. Now, in effect, they may be instinctively, but with respect to Israel, more of them are becoming conservative and more of the Israelis are becoming conservative.

And there's a real danger that when you have a president is inept into Biden on all matters, domestic and foreign, that he will rupture a relationship which managed to work very well for over 70 years. So the American influence on this and the situation in which Biden interferes in the Israeli internal affair by announcing that they really ought to back off their reform, the guy really needs to put a chokehold on his mouth when it comes to foreign affairs.

And he's utterly unable to do so. And so that in addition to all the ugliness that takes place because of the ground rules in Israeli internal politics, we get this foreign and division by a president who is one of the least skillful diplomats ever to hold high office.

>> Tom Church: You've been listening to the libertarian podcast with Richard Epstein. If you'd like to learn more, make sure to read Richard's column, The Libertarian, which we publish on definingidea@hoover.org. If you found this conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in.

For Richard Epstein, I'm Tom Church, we'll talk to you next time.

>> Hoover Representative: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work, or to listen to more of our podcast or watch our videos, please visit hoover.org.