Sunday, September 28, 2008

Where in the world would somebody get the idea to plant a homemade bomb at the door of an ideological opponent?

I'll tell you. In 1952, a bomb was planted at the door of Transportation Minister David Zvi Pinkas. The house was severely damaged and Pinkas, who was home but not directly injured, dies two months later of a heart attack. Police caught radical writer, Amos Keinan, leaving the scene. Keinan stood trial for the bombing and was acquitted for lack of evidence, though he was widely believed to have perpetrated the act along with Shaltiel Ben-Yair.

Keinan's wife, Nurit Graetz, has just written a biography of him, in which she reports that he was indeed guilty. He confessed to her that he bombed Pinkas's house to protest Pinkas's religious world-view.

Keinan was no angry teenager. He has been a prominent spokesman for the radical left in Israel since the founding of the State. He is the toast of the very people who are certain that the very foundations of Israeli democracy are under threat because of the Sternhell ("to know him is to need an alibi") incident.

And, of course, he and Sternhell are no strangers to each other. They were co-signed on a petition to the High Court in 2003, against the appointment of Dan Halutz as Ramatkal, on the grounds that he ordered the bombing of Saleh Shehade in Gaza. The petititioners are an all-star team of pernicious characters, who further appealed to international tribunals to arrest Israeli army commanders.

Unfortunately, Keinan is too senile to offer a sanctimonious condemnation of the Sternhell bombing, but fear not. Yehonatan Gefen has decided that today is just the day to write a glowing testimonial to Amos Keinan, along with an enthusiastic recommendation of Graetz's book.

Tuesday, September 23, 2008

It is now undeniable: Barack Obama is a radical. (Addendum: Perhaps a better way to phrase that would be: The organization that gave Obama his start in political life was one with a distinctly radical agenda. This could be an indication of where his instinctive sympathies lie.) (Addendum 2: Way too many addenda lately. I really ought to start paying better attention.)

Researcher Stanley Kurtz has been pursuing Obama's links to SDS bomber and unreformed radical William Ayers for many months. He has finally gained access to the Chicago Annenberg Challenge (CAC) archives in the Daley Library and the findings are absolutely conclusive. Despite Obama's denials, he and Ayers cooperated closely in pursuing an unmistakably radical educational agenda in Chicago.

The Daley archives show that Mr. Obama and Mr. Ayers worked as a team to advance the CAC agenda…The CAC's agenda flowed from Mr. Ayers's educational philosophy, which called for infusing students and their parents with a radical political commitment, and which downplayed achievement tests in favor of activism.

Read Kurtz's full article here.

Monday, September 22, 2008

Two quick observations on current events.

First, I think the arguments about whether Mofaz was screwed by foile shtick in the Kadima primaries are irrelevant. Peres would have asked Livni to try to form a government, even if Mofaz had narrowly won the primary.

Second, for those who missed it, the judicial appointments committee met today and it was an epic fiasco. The three Justices on the committee argued (based on unfounded arguments raised in a 2005 Supreme Court decision permitting a caretaker government to make appointments) that a caretaker government cannot make appointments to the Court. Mazuz was called in to offer a legal opinion, but apparently the Justices had neglected to prep him and he couldn't find any problem with the appointments. So Beinish and Co. just talk their ball and went home.

The subtext here is that Beinish is assuming that, one way or another, her nemesis Friedmann's days as Justice Minister are numbered and she'd prefer to make appointments once a more congenial Justice Minister is in office. Second, the Knesset recently passed a law requiring seven out of the nine members to ratify a candidate for the Supreme Court (five used to be enough). This was the brainchild of Likud MK Gideon Saar, who wanted to strengthen the hand of the three coalition politicians on the committee (there are four politicians on the committee but one of them is, by tradition, an opposition MK) by giving them veto power. The message sent by the Justices today was that there are three of them, too, and now they have veto power even without the help of their two lackeys on the committee. (They could have just politely not reached an agreement on any candidates, but they childishly needed to thumb their noses.)

This is good news. First of all, part of Saar's agenda in pushing this legislation was to prevent serious reform of the appointments procedure. In fact, once a right-wing government is in place, Saar (and, to some extent, Bibi) will be the only ones blocking real reform. Hopefully, today's fiasco will make Saar feel foolish enough to acquiesce to the necessary changes.

Second, the Justices have effectively announced that this caretaker government has no authority to govern. Interesting times ahead.

Addendum: This is too good to be true. Friedmann pointed out tonight that Beinish herself was appointed to the Court by a caretaker government.

Thursday, September 18, 2008

Since the newspaper's are wrongly reporting that Kadima members just chose the next Prime Minister, let me clarify the law.

First, so long as Olmert doesn't resign, he remains PM.

Second, if he does resign, there begins a long process of replacing him, during all of which time he remains caretaker PM. (If, in addition to resigning, he also declares himself unable to continue even as caretaker, he is replaced by the Deputy PM -- who happens to be Livni, independently of her victory in the primary. This is extremely unlikely.)

Upon his resignation, the President assigns the opportunity to put together a coalition to the candidate most likely to succeed in doing so. It should be emphasized that, unlike what has been written in countless editorials, the President is not bound to give the first opportunity to Livni. In fact, on one previous occasion (in 1990), Yitzhak Shamir had the best chance to form a coalition after a vote of no-confidence in Shamir's government, but then-President Chaim Herzog, gave the first shot to another candidate -- Shimon Peres. (In what has come to be known as "hatargil hamasriach", Peres failed to form a coalition and then Shamir succeeded. Anyone with lingering sympathy for Aryeh Deri, should pay careful attention to his role in that fiasco.)

Nevertheless, since Livni has made all the right elitist lefty noises, Peres will almost certainly give her the first chance. This is appropriate, given how well Livni's squeeky-clean image plays in, for example, the village of Baka Jat, where she took 172 out of 186 votes. Seems they just love her there.

If Livni fails to put together a coalition within 42 days, Peres can choose another candidate. This process can, in principle, continue until the elections scheduled for 2010, during all of which time Olmert remains caretaker PM. By the way, at any time during this process 61 MKs who agree on a single candidate can force the issue.

Likewise, at any time -- before or after a coalition is formed -- 61 MKs can vote to go to new elections within 90 days. This is very likely to happen.

Addendum: While in the original Basic Law: The Government, the process of choosing a candidate to form a government is iterative, this is no longer the case . As Anonymous comments, under the current version of the law, there can be at most two rounds. On a practical level, this doesn't make much difference since it is highly unlikely that there would ever be more than two candidates with any chance at all of forming a government. On a theoretical level, however, the situation is actually worse than I put it. Since, the sitting PM remains in office until a new government is formed, Olmert could in principle remain PM so long as he lives and lies. Even after elections, so long as nobody succeeds at obtaining the Knesset's approval, the sitting PM continues.

Tuesday, September 09, 2008

Let's try to make some sense of this week's numerous political developments.

First, the non-story. The police "recommended" indicting Olmert for bribery and various related crimes. If you've watched enough Law and Order, you know that all that happened is that Lieutenant Van Buren has just passed the file over to Jack McCoy. The recommendation is just the police department's way of patting itself on the back for a job well done. An actual indictment is a ways off.

So, in the meantime Olmert is offering the juristocracy a carrot and a stick. The carrot is Ramon's pinui-pitzui proposal. The stick is Friedmann's judicial reform bill.

Let me explain what Friedmann's bill is about.

The authority of courts to strike down legislation as unconstitutional has become a central, though problematic, feature of democracy. Since judicial review of legislation shifts power away from elected representatives, all democracies invoke certain safeguards against abuse of this judicial authority. Thus, in Great Britain, the courts can offer only an advisory opinion that a law violates the (European Union) constitution, but this does not invalidate the law. In France, a parliamentary body, the Conseil Constitutionnel, can rule that a law that has been passed by Parliament is unconstitutional only before it is signed into law. In most other European countries, as well as in the United States, there are judicial bodies that can rule laws unconstitutional, but these bodies are all politically appointed. Moreover, in all countries, there are limitations on what kinds of laws (and administrative acts) the court is prepared to review; certain matters (defense, foreign policy, budget) are universally regarded as non-justiciable. These limitations are generally prudential, not statutory.

The model that is most often discussed in Israel is the Canadian model, which is different than all the above models in some respects. What Canada has in common with the above models is that justices are politically appointed (there are advisory committees, but ultimately the Minister of Justice decides) and certain issues are regarded as non-justiciable. The juristocrats who wish to adopt the Canadian model somehow never show much interest in these aspects, nor are these aspects the subject of this particular proposal of Friedmann (though he is interested also in these issues).

Anyway, the aspect of the Canadian model currently under discussion is what is known in Canada as the "notwithstanding" clause. The idea is that if a law is ruled unconstitutional on certain grounds, Parliament can vote to retain the law, "notwithstanding" the court ruling. (Provincial legislatures also have override power; in fact, the whole idea was a compromise involving provincial autonomy, but never mind.)

The idea of adopting the Canadian model in Israel has its origins in a committee headed by Yaakov Ne'eman for the purpose of drafting a Basic Law on Legislation. (Addendum: Commenter Ben Bayit correctly notes that the true origin of the override in Israeli constitutional law is in Basic Law: Freedom of Occupation. The Ne'eman committee first proposed it as a general principle.) The committee was actually dominated by Aharon Barak, through his shik yingel, Yitzhak Zamir. Their scheme was to create the illusion of balance by claiming that they were simply adopting an existing model, while actually gutting it of all substance. Their "notwithstanding" proposal (paragraph 11) differed from the Canadian model in the following ways:

1. The Canadian override can be invoked also prior to a court ruling; in the Ne'eman (Barak) proposal, it could only be invoked after such a ruling.

2. The Canadian override requires a simple plurality vote (i.e., it can be invoked by a 2-1 vote), whereas the Ne'eman (Barak) model requires 70 votes. As a practical matter, this could never happen.

3. The Canadian override remains in effect for five years and can then be renewed and such renewal can be invoked an indefinite number of times. In the Ne'eman (Barak) model, the override dies forever after five years.

4. The Ne'eman (Barak) override clause is temporary and the whole clause disappears ten years from passage of the proposed bill.

As you can see, the Ne'eman (Barak) bill is an absurd joke. Friedmann is taking the Canadian model a bit more seriously. On the four points above, Friedmann's proposal is as follows:

1. Friedmann sides with Barak that the override is post-hoc and not prophylactic. That's reasonable.

2. Friedmann requires 61 and a differential of at least five votes between pro and con votes on the override. The requirement for 61 is reasonable; the other requirement is dumb and reeks of compromise.

3. In Friedmann's proposal, the override is in effect for five years, but when it terminates, the law remains in effect until the Court invalidates it again. This is actually a bit stronger than the Canadian model in which the law is automatically invalidated after five years unless the override is renewed.

4. Friedmann's proposed law doesn't self-destruct.

In sum, in most aspects Friedmann's override proposal is weaker than the Canadian version. When you add to this the fact that Israel's High Court is generally contemptuous of limitations on justiciability and is largely self-perpetuating, the juristocracy has very little to complain about. But, as My Obiter Dicta points out, they and their peanut gallery are in high dudgeon.

Unfortunately, they can calm down. Olmert is just wielding a stick. The moment the carrot looks more useful, the stick will vanish in a puff of smoke.

Friday, September 05, 2008

I don't know if Sarah Palin walks on water, but I'm pretty sure she can fly.

I mean, how often in the course of human events is one put in mind of the word "spunky". Until Sarah Palins' RNC speech, I hadn't thought of anyone as being spunky since Sally Field as Sister Bertrille in The Flying Nun.

But by the time Palin said that "a small town mayor is like a community organizer just with actual responsibilities", it had dawned on me that she was actually more like Sally Field in Punchline, a housewife who'd rather be doing stand-up.

And you know what: I really really like her.

But seriously folks. My willingness to identify with her made me realize quite how much my own self-image and identity have changed over the years. I quite justifiably always thought of myself as a rootless cosmopolitan. My parents were born on one continent, I was born in another, my kids in a third. I grew up in the heart of the world's most cosmopolitan city. Alienation is my stock in trade and cynicism is my middle name. I certainly know more people who edited the Harvard Law Review than shot moose in Alaska.

And yet. As Palin spoke, I realized that I now identify with those Americans who live in small towns, who love their country and feel deeply rooted in it, who carry guns for defense, who have large families, whose children fight its wars. That's my life now.

Obama is a decent person who seems like a really great guy to shoot the breeze with on the bench during a basketball game or in a dorm room. But, especially when contrasted with Palin, he and his wife and his hard-core supporters just seem like over-privileged whiners, self-obsessed careerists, for whom the poor serve as props in the tedious drama that is their quest for self-definition.

Obama is so yesterday. Bring on the spunky flying moose lady.