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[DESCRIPTION] Touro Talks intro displaying photos of students and faculty across the university, fading into the Touro University logo.

[TEXT] Touro Talks, Touro University, Supreme Court of Israel: Discussion for the Present and the Future, February 12, 2023. Touro Talks is sponsored by Robert and Arlene Rosenberg.

[DESCRIPTION] Aharon Barak speaks to the camera in an office setting. Nahum Twersky's video appears in the top right of the screen. The Touro University logo is at the bottom right.

[AHARON BARAK] Dear friends, Elyakim and myself have worked together a long, long way. We are close. We met many years ago as members of the Israeli delegation to Camp David. Ely followed my step as attorney general of Israel and, later, as a justice of the Israeli Supreme Court. As President of the Supreme Court, I have done my best to bring Elyakim to the Supreme Court. Thus, I know him very, very well.

I think that he is one of the extraordinary persons and an extraordinary judge to the Supreme Court. He wrote a balance between Israel's Jewish nature and Israel's democratic nature, between Jewish Law and liberal secular ideas of democracy. He brought it because he himself has a very deep understanding of both the Jewish nature of Israel and the democratic nature of Israel. He was the first, in 1980, to write a book on the history of the Israeli Supreme Court.

I myself am a great believer that the Israeli Supreme Court has to reflect, not to represent, to reflect the deep values of the Israeli society. In this respect. Elyakim is my ideal judge. After his retirement from the Supreme Court, his voice was heard in the Israeli public debate. He continues to reflect our deep values as a Jewish and democratic state. Deep in my heart, I congratulate him and his wife for his Touro Award, and I pray that he will continue many, many years in his fight for a better Israel. Thank you so much.

[NAHUM TWERSKY] Thank you. We'll now move on to Miriam Bitton for a tribute. I apologize for any technical difficulty. And Miriam, the floor is yours.

[DESCRIPTION] Miriam Marcowitz-Bitton joins.

[MIRIAM MARCOWITZ-BITTON] So I want to start by thanking Touro College for paying this tribute to the former vice president of the Israeli Supreme Court, Justice Rubinstein. I have known Justice Rubinstein for more than 20 years. I was privileged to start my career as a legal clerk of Justice. Rubinstein while he served as the attorney general of the state of Israel.

I want to start by saying a few personal words about Justice Rubinstein, and then I'll move forward to discuss his long public service career. Before I review his contribution to the state of Israel over the years, I want to emphasize how Justice Rubinstein is, first and foremost, a dear friend to many of us, many Israeli lawyers and others. He loves people and cares about them. We can all attest to how he is an honest, decent, merciful, a person who is in constant search for compromise and peace, a great supporter of equality, justice, and much more.

Lawyers who got to know him in the courtroom described him as a pleasant judge who is always prepared and attentive to the parties, very familiar with the cases here.

I personally can attest how we used to personally know every person he worked with over the years. Even after many years, he will remember everything you told him about yourself. He is a type of person who has made kiddush, for example, for a disabled and lonely woman in our neighborhood every Friday night for many years, praying regularly for a speedy recovery of a long list of sick people.

And when I recently gave birth, he came to visit me in the hospital with his wife, Miriam, and it was one of many gestures he used to make for me and for many other people. This and many, many more stories can be told about Justice Rubenstein, and that's really the personal side of the story.

But beyond these really brief words, personal words about him, I want to review his contributions to the state of Israel over the years. Justice Rubenstein was born in 1947. He was a civil a civil servant of the state of Israel for almost 50 years. I can say that he is even now a civil servant because he doesn't stop working. Justice Rubenstein served in many roles over the years. He served as a legal advisor to the Ministry of Defense and Foreign Affairs during the mid-70s.

His legal career was followed by a significant diplomatic career. His diplomatic career started in 1977. He was a member of Israel's delegation to the peace talks with Egypt that led to the signing of the Camp David Accords between the two countries. Upon their completion, he became in 1980 an assistant director general of the Ministry of Foreign Affairs, in charge of implementing the normalization of relations with Egypt. In 1985, he served as the Deputy Chief of Mission of the embassy of Israel in Washington, DC. In 1986, he was appointed as the cabinet secretary of the Israeli government. And in that capacity, he served in various roles relating to Israel US relations.

In 1991, he was again a member of an Israeli peace negotiating team, traveling as part of the Israeli delegation to the Madrid Peace Conference that opened the negotiations that would eventually lead to the 1993 Oslo Accords, a major breakthrough in the Israeli-Palestinian conflict at that time.

Following the conclusions of those talks, he also chaired the Israeli delegation to peace talks with Jordan, which concluded successfully with the agreement in 1994 between Israel and Jordan. He then turned towards domestic Israeli jurisprudence. He served as a judge on the Jerusalem District Court from 1995 to 1997, and then served as the attorney general of the state of Israel until 2004.

And over the years, he wrote several books on Israel's Supreme Court and other subjects, especially focusing on the relation of Judaism to Israeli political and legal life. In 2004, he was appointed to the Israeli Supreme Court, and in January 2015, he was appointed as the vice president of the court, a position he held until his retirement at the age of 70 in 2017.

On the Supreme Court, in his capacity as a justice, he served and on the chair as the chairman of the election committee, and made significant rulings in that regard. And additionally, he decided some of the major, I would say, cases in the Israeli Supreme Court on highly contested issues in all areas of law, including high-profile criminal cases, constitutional law cases, economic cases, civil cases, and many more. Some of the highly contested issues pertain to sensitive issues, such as conversion and ultra-orthodox Jews in Israeli society. And I think he was well-known for his great emphasis on Jewish law, that you would always find a mentioning of a Jewish law. He would always mention it in his decisions in almost every case he had decided over the years.

I want to touch upon a few of his decisions, a few of his major decisions that I think are typical to the years he served on the court. And I want to start with the last case he decided on prisoner's rights in Israel. The last decision that he read on his retirement date deals with prisoners rights. The decision dealt with the living conditions of prisoners in Israeli prisons. He decided that the space that was given to prisoners in jail in Israel was not consistent with the jail's ordinance, and with the state duty to guarantee prisoners dignity and right to live their life in dignity.

He decided that we should enlarge that space, although such decision requires costly implementation, and his landmark decision was consistent with his constant care for prisoners. I think one of the things that was typical to justice Rubinstein was that he used to take his legal clerks to visit jails, so they understand what it means to be a prisoner and why we should care about their rights and their conditions in Israeli jails.

Another major decision made over the years pertained to agunot. He was a great supporter of agunot his decisions. In the famous case of [HEBREW] well-known as the agunah from Tzfat, he decided that the highest rabbinical court could not reconsider its earlier decision to give her a get, based on a petition of a third party that had nothing to do with the case. In his decision, that was just before the holiday of Passover. He emphasized that just before the holiday of freedom, we should guarantee that the dignity and freedom of the agunah will be respected and that her journey will be over.

In another decision, he decided that the highest rabbinical court has the authority to use different sanctions against men who refuse to divorce their wives, including a sanction of shaming. Other important cases that he dealt with over the years were cases of adoptions, and those, as he attested in the decisions, were some of the hardest cases we dealt with. He was especially touched by these types of cases.

In one of these cases, there was a story about a minor that was adopted at the age of one month only, and after four months, his biological parents petitioned the court to revoke the adoption. The Supreme Court decided to revoke the adoption, and Justice Rubinstein wrote a dissenting opinion, arguing that after a period of 60 days, the court will not easily revoke such a decision. In his opinion, he emphasized, those types of decisions are never easy, and probably the hardest that the judge has to deal with in his job, suggesting that there are no absolute good decisions in these types of cases.

Other landmark rulings of Justice Rubinstein include the case of a Ragen versus the Ministry of Transport, in which Rubinstein ruled that the public buses could not bow to pressure from Haredi ultra-orthodox Jews. And he prohibited, essentially, the segregation of passengers based on their gender without their consent. And, in the decision, he stated that the public transportation operator, like any other person, doesn't have the right to order, request, or tell women where they may sit simply because they are women. They must sit wherever they like.

As I now read over these lines emphasizing this, I am astounded that there was even a need to write them in the year 2010. Justice Rubinstein said that the days of Rosa Parks, the African-American woman who collapsed the racist segregation on an Alabama bus in 1955 returned. That was a quote from his decision.

Another major decision he made pertained to the Tal Law, which the Supreme Court held or declared unconstitutional in 2012. Under the law, the law provided special exemption for mandatory military service in the IDF to ultra-orthodox Jews and extended mandatory military service to Israeli Arabs.

Rubinstein, who is a religious man, included numerous texts from traditional Jewish texts written in his written ruling, stating that "we need to admit the truth that unlike in Jewish Haredi society in other countries, which has understood that only a few brilliant individuals can live under the tent of Torah all their lives, in Israel a whole complicated sociological system has been built that even its leaders know deep in their hearts is not good and not appropriate, that because of military duty, thousands of people sit in the yeshivot, where it is not their place. These people, if they served in IDF, and if they worked like any other person while also making time for Torah, would be efficient both to the state, to their community, and to themselves."

And last, another last important decision-- one of the last decisions he made in the Supreme Court pertained to the Israel natural gas plan that Justice Rubinstein, together with other justices, invalidated, suggesting that the government undertaking under that plan not to legislate and also not to fight any legislation against the plans provision was determined without authority and, as such, is rejected. And it was a highly contested decision. But it reflected, really, the public interest in those natural gas resources of the state.

I think these and many more decisions are really typical to Justice Rubinstein's legacy, and I think he contributed a lot to the Supreme Court over the years he served on the court. Even after his retirement, Justice Rubinstein is involved in many public tasks for the betterment of Israel. And I want to conclude by wishing him and his family good health and continued success in all his important missions, and that I personally want to wish him, although it won't work, that he should rest and enjoy his retirement and not fight all day, although that's part of his nature to work for the betterment of our society. So I really wish him all the best good health and continued success in everything he does. Thank you so much.

[NAHUM TWERSKY] Thank you, Professor Bitton. What a distinguished and brilliant tribute. Thank you again. And now on to part two of our program, in which I'm just going to introduce President Alan Kadish, President of Touro University, in our distinguished tribute, Justice Elyakim Rubinstein, and leave it to the two of them to discuss and talk about what everyone is reading about in the media, the current state of the Supreme Court of Israel and its future. Gentlemen, the floor is yours. Thank you.

[DESCRIPTION] Alan Kadish joins.

[ALAN KADISH] Thank you very much, Nahum, and Justice Rubenstein, welcome. It's great to have you back.

[DESCRIPTION] Elyakim Rubinstein joins.

[ELYAKIM RUBINSTEIN] Thank you very much. And I'd like to also thank, of course, Nahum Twersky the initiator, and also a Chief Justice Barak, and my close friend, former law clerk professor, Miriam Bitton-Markowitz. So really, and of course, thank you, Dr. Kadish.

[ALAN KADISH] Thank you. As Nahum Twersky said, it's a complicated time for Israel and the Israeli Supreme Court. I happen to be in Jerusalem now, along with you, and there are demonstrations on the streets. There are tensions in the air. And--

[ELYAKIM RUBINSTEIN] I joined demonstrations, by the way, twice already. I was abroad later, but I went to demonstrate opposite the president's residence, and I wrote to him that it's not aimed against him, but against those with the new plans.

[ALAN KADISH] So as I said, it's been an interesting time. And actually, Joe Biden, the President of the United States, in a very unusual move, in the past 24 hours, has weighed in on the debate as well. So before we start talking about what's going on now, Justice Rubenstein, one of the things that perhaps many of our audience, particularly the American part of our audience, don't fully understand is some of the unique aspects of the Israeli Supreme Court and the Israeli justice system.

In particular, there is no constitution in Israel, so the court doesn't have a constitution to interpret. And the system of justice selection is different in Israel than it is in the United States. So perhaps you could tell us a little bit-- obviously, as we all heard in the tribute, you had a fantastic career in serving the state of Israel, but particularly your time on the Supreme Court. So there's no one better to describe the unique aspects of the Israeli Supreme Court than you are. So please tell us what's unique about the Israeli Supreme Court and how you think it serves the country well.

[ELYAKIM RUBINSTEIN] Well, thank you very much, Dr. Kadish. The court in Israel is different from the United States. The United States Court sits in the full panel of nine people and takes, like, 70 cases or something like that a year. Our court is very busy, and I'll explain why, because it is also both a court of appeal and a high court of Justice in terms of the ability of anybody to petition to the Supreme Court against government decisions and against parliamentary decisions.

We don't have, as you mentioned, a full-fledged constitution. We have basic laws, which are about, God willing, at some point, to be incorporated into a full-fledged constitution. But the current situation is that the court has interpreted, back in 1995, the existing basic laws as a functional constitution, in a famous case which my wife Miriam argued for the government in those days.

And the idea is that the court can be petitioned, and it would apply to a variety of cases-- could be state and religion, could be-- which the court doesn't like to deal with-- but it has to do with cases of gender, of equality, of Arabs and Jews situation, minorities of the situation with the Palestinians. All these come to the court to this special power known as the High Court of Justice. And you can compare it in a way to the biblical city gate or to the Athenian public square. And that's the unique facet of this court.

And of course, nobody is perfect. The court, you can criticize some of its decisions. Whenever there is a minority and majority, which is in most important cases, the minority criticizes the majority. So you can say we don't have a constitution. We don't have a full-fledged formal constitution, which you can buy in a bookstore like the US Constitution, its amendments, but it does exist in a functional way.

Something else-- how we select justices or judges throughout the echelon. We have created back in 1953 a system which is unique to Israel, I think, in which four elements participate in selecting judges and justices. Two ministers, and the chair is the Minister of Justice, two Knesset members, three justices of the Supreme Court, and two Bar Association representatives.

And this has functioned because I sit on this committee for a number of years. It is mostly taking its resolutions or accepting them by consensus. There would be cases in which there would be a vote by law for all other judges. You need a simple majority of 5 to 4, but it rarely happens that we will have the need for such a majority. And for the Supreme Court, you need 7 out of the 9.

And the main point is that unlike the image that the difference is that the justices have a veto from-- formerly, they do in the Supreme Court selection. But as I said for a number of years, and in all cases, I believe-- I hope I'm not mistaken-- we got the decisions by consensus. So there is a negotiation between the elements and the committee and the-- I hate the word deal, but they somehow balance between the different perceptions of how a justice would be.

So I think that the-- and one more point, the court has been the guardian of human rights and a strategic asset to the state. As I said, nobody's perfect, but human rights affect that. You can petition, and the court opens its gates, also, to NGOs that petition.

Miriam Markowitz mentioned my decision, mine with others on the space that prisoners would have in their cells. This is something which is the human rights of a weak part of the population. When you are a prisoner, you don't lose the need for human conditions, even if you're not a [HEBREW], if you're not somebody that you'd like to be friendly with. And the code is really the guardian of human rights.

And last, I said strategic asset. We are chased all the time by, for instance, the people who want to push our relations with the Palestinians into the Hague International Criminal Court. What is our main response to the court besides jurisdiction argument?

Why is this and other international courts are designed-- what is their purpose to bring justice where there is no justice? That is countries that are totalitarian, countries that don't have a functioning legal system. And we say, look, we do have a strong judiciary, a functioning legal system, a clean attorney general and prosecution. So we don't need you, the Hague or anybody else to be a kind of a substitute for our system.

If this system is weakened, as the current proposals do, unfortunately, and I say it sadly, do propose will be weakened also in this respect.

[ALAN KADISH] That's great. I want to try to spend the rest of the time talking a little bit about the issues that you raised, and obviously, as you said, you participated in the protests, so the audience knows well where you stand. But I want to try to separate the discussion into two or three different areas.

First, I'd like to talk a little bit about some of the things you said about the way the Supreme Court operates, before getting into the issue of what the reforms might or might not do. So let me ask you a few questions here, Justice Rubenstein, playing what we call in the United States the devil's advocate, which means I'm going to say some things, I don't necessarily believe in all of them, but I'm going to ask you some of the questions that have been posed, some in the press, some in the Q&A section right now, and by others.

So the first question is you describe the process of justice selection as a negotiation and how there was really-- it was consensus. But of course, the negotiation really depends on who comes to the table. And the system that you described as being uniquely Israeli that was established in the '50s, it's really not a democratic process, is it, because you have the existing justices, and you have two members of the bar association. And together, they form a veto of the legal establishment, not of the will of a democracy. So how would you respond to that? And why do you think that system works so well when it's really not democratic?

[ELYAKIM RUBINSTEIN] Well, I beg to disagree. First of all, the system was created by the Knesset. It's in a basic law. So it is not that the court or the bar or anybody, force themselves on the democracy, on the Knesset, on government. This is a Knesset-created system. In fact, I wrote about it, as Chief Justice Barak mentioned, in a book in 1980 on how it was inter alia, how it was created.

And the notion of the will of the people is the will of the people created this system, and thank God it has created-- we now have 800 judges, much less than we need, in comparison to other countries. But we have a clean, professional judiciary that may make mistakes, but as I said before, like any human institution. But the fact is that I'm proud to have been a justice on the court. I'm proud to have been a judge earlier in a district court. I am proud in general to serve the state of Israel for that many years.

But as for your question, that's the basic answer. And we could go in and look at the record. So Yitzhak Rabin, Rabbi Shalom, with whom I served as cabinet secretary, I served with Yitzhak Shamir and Yitzhak Rabin. Yitzhak Shamir, Yitzhak Rabin used to tell us always-- in Hebrew, it's called [HEBREW] the test of the result. That is, what is the result that you've got after a process? And the result is good. It may not be perfect. We are not perfect. Nobody is perfect. But it has been a pride for the state of Israel.

And now people speak of changing it, amending it, giving more weight-- most of the weight to the politicians. Now our pride is that our judges all have justices-- we all have, of course, their private political views-- in their work are apolitical. I know in the United States, there's a different tradition. I respect it, although it is sometimes-- ask yourself, how come judges in the States are elected in the ballot? And what does it mean when they want to be re-elected? Does it affect the decisions. I hope not, and I really have respect to the US and it's a federal judiciary, president, senate, all of that is fine. You have a full-fledged constitution. That's your tradition.

I think that, for us, our tradition 70 years is enough as a period of time to judge the test of the result, and this has been a good result. So you can always think, let's amend something, let's improve something. That's all kosher. It's all appropriate to try. But I hope that what is being proposed now will, if God forbid, is being accepted, will not be a demolition of the judicial system by politicizing it and so on.

[ALAN KADISH] You make an excellent point about how tradition and results are very important. Again, before we talk about the current proposals, I just ask, it's true that the Knesset, in 1950s, established the system of justice selection that you described. And in many ways, it has worked very well. But of course, it was a very different country in the early 1950s, much smaller and much more homogeneous, single party rule, really.

So the idea that some change might be appropriate, particularly when it doesn't involve constitutional change, but just a vote to amend the basic law, do you think that's necessarily-- again, forgetting about the details of the changes-- is the idea that perhaps some update is appropriate? Does that strike you as being so counterproductive?

[ELYAKIM RUBINSTEIN] Well, it's always a possibility to come and negotiate and look for betterment or improvement of any system. But the current ideas, which basically put it all in the hand of hands of the politicians are, in my view, detrimental to the functioning of the court, particularly the Supreme Court. You don't want, in our system, political cronies to be those who are the justices.

And also, you mentioned before the fact that we don't have a full fledged Constitution. For instance, there is no basic law on how to legislate. And basic laws are being amended. And that's a shortcoming-- I wrote about it in court decisions-- are being amended as if they were a bylaw of Ra'anana on sewage. I mean, it's the frequent amendments-- in the US, to amend the Constitution, you need a majority of the United States, a majority of Congress, a very, very kind of serious, long, arduous process. That's not our case, unfortunately.

And you also mentioned that in the '50s, the country was homogeneous. It was indeed smaller. It was indeed poorer. I grew up there, and I can attest, but it wasn't homogeneous. There was one party ruling. That's correct. But the use of the big area, the big immigration to Israel in the early '50s and later in the early '60s and later in the late '80s and in the '90s have been a blessing to the country.

But also, it wasn't homogeneous to start with because as well as I know, the ingathering of the exiles, what's known in Hebrew as kibbutz galuyot, is there are two miracles that happened here. And I'm proud to be an Israeli and mention them. One is the ingathering of the exiles, which is unbelievable. I don't know how many countries, but probably 70 or 80. I don't know countries.

You take my own family, my nuclear family and our extended family. It's a mix of where we come from, the Russian part and my wife from the Polish part. But when you come to the cousins and to the uncles and to the aunts and to the sons in law and daughters in law and so on, you'll find Morocco, Turkey, Iraq, and just name it, and France, and the United States, Canada. So you have a panoply of the ingathering of the exiles.

The other miracle is the Hebrew language. The fact that we all speak Hebrew, and it wasn't a self-understood phenomenon. My mother, who came here in 1922, and our pride is that her family, for 100 years, nobody from her extended family left the country.

She already spoke Hebrew as a child, but not with her parents. With her parents, she spoke Yiddish. When I was growing up, most of my friends were children of Holocaust survivors, and they spoke Polish and Romanian and Hungarian and just name it, in Arabic if they came from Arab countries. And as Kishon, one of our humorous writers once said, we're the only country where the mother learns the mother tongue from the children. And so it's something very, very moving.

And then, of course, if we come back to the judicial system, the judicial system tries, by its policy, to have a reflection, as Justice Barak said, of the society.

So, for instance, I was proud to have been on the selection committee when we appointed Ethiopian people from Ethiopia to be judges, not in the Supreme Court, but in lower courts. People from the former Russian union, one of them is now on the Supreme Court. So there's an immigrant from the former Soviet Union. Arabs-- that should be more. But they are 10% of the judiciary, that 20% of the population. What I want to say is that it's a complexity, a very interesting complexity, but it has proven itself to be effective, to be an asset. And I'm afraid that what they come up with now would be a harmful.

[ALAN KADISH] One of the things that both Chief Justice Barak and you mentioned was that you want to retain the idea that Israel is a Jewish democratic state, which is, of course, something that's very important. But one of the questions that some have asked is, why is the Supreme Court qualified to determine the Jewish aspect of the state, particularly when it overrules the rabbinic court?

And by the way, the decision that you made to overrule it that Miriam spoke about is one that I feel very good about, but nonetheless-- personally-- but nonetheless, why is the Supreme Court of people who are perhaps great jurists but not necessarily great adherents or scholars of the Jewish tradition, why are they qualified to help preserve the Jewish democratic state without any checks and balances?

[ELYAKIM RUBINSTEIN] First of all, as far as rabbinical courts, the court basically would only interfere. And we underline each time that we are not halachic or Jewish law, poskim, or making decisions on Jewish Law, although it comes to us, I dealt with them with twice with the mikvah decisions, the ritual bath or with the [HEBREW], the seventh year, which you suppose to have the land, not to walk the land.

But this is always with-- so the Revenant or the rabbinical court, the question is almost always of jurisdiction. That is, did the court, the rabbinical court or the Muslim court or the Christian court or the Druze court, did they extend their jurisdiction, or did they abide by it, or natural justice was somehow harmed? That is, somebody wasn't heard properly or whatever natural justice may mean.

So it is not that the court is sitting there and writing a new [HEBREW], a new [HEBREW] decisions. If you check on it, you see that it is, in many cases, helpful to the religious courts, in some cases critical or deciding against them because they transcended their jurisdiction or their procedural rules. That's one thing.

The other thing is you spoke about the values of the state of Israel. They are mentioned, for instance, in the basic law, human dignity and freedom, which is a major basic law, which is the constitutional basis. It speaks twice about the values of the state of Israel as a Jewish and democratic state. It does not enumerate what these values are.

There is a reference to the Declaration of Independence, which does have a list kind of values. And one of them, by the way, is equality, which is not mentioned in any basic law, but the court has been applying it throughout its decision-making. But the values are not defined by the basic law. So it came to the court. Who interprets laws? The court.

And the court is very cautious. This is not fully underlined in the debate that's going on. There were 470, I believe, or something like that, constitutional petitions since 1995 when we had what is called in the debate the constitutional revolution. Out of 470, only 22 were accepted. What does it mean? That the court is very cautious. And I can also, of course, testify myself how cautious the discussions are when it deals with the Knesset decisions.

And the result is that most of the decisions are-- most of the petitions are rejected. Very few-- 22 have been accepted. And so the need to override doesn't exist. It's become a slogan, but in my view doesn't-- I'll say another thing. All these ideas to weaken the court, I don't think that all the people that are talking about it, including the political system, have read the decisions.

What I mean by that is-- I'm trying to be respectful, but each decision on a constitutional matter is very, very reasoned at length. And of course, it's tiring to read them. But it is not that you sit there and you say, I'm deciding that you're not-- and I think people speak of how come the idea of-- how would say it in English-- unreasonability.

It is not just unreasonability that is the Justice sits there and say, with all respect to your decision, Mr. Minister, I think it's unreasonable. No, it's only in extreme cases of unreasonability-- that is, when a regular person who takes an interest in the process would think that this is wrong. That is the test, not the idea of just it's my-- I'm sitting there and annulling your decisions. No.

[ALAN KADISH] Got it. So let me ask you this. One of the things we're used to in the United States is checks and balances. And if I had to suggest what the checks and balances are on the Supreme Court in the United States, it's kind of twofold. But one of the basic ones is that rather than using the criteria that you just described of what a, quote, regular person finds reasonable, which many regular people might debate, ultimately, even though the process certainly is not perfect and has been politicized, the US Supreme Court doesn't decide on reasonableness. But the check on the US Supreme Court is the Constitution.

What's the checks and balances on the Israeli Supreme Court? Even agreeing, first Of all, that your time on the court was exemplary, and that most of the court's decisions have been cautious and well-reasoned, it's still true that a system without checks and balances could, in the future, even if it hasn't already, lead to an abuse of power. So what's the check on the power of the Supreme Court, particularly when you're talking about reasonableness, which is something that is a little hard to define, even though you did a beautiful job of doing it?

[ELYAKIM RUBINSTEIN] Dr. Kadish, it's not a reasonably extremely-- I want to underline extremely unreasonable. And this is many times forgotten. "Extremely" means what "extremely" means. And the. And as far as checks and balances, I didn't catch what you said about the checks on the court in the US system. The checks are-- there is nobody in terms of the American process above the court. The court is checking on a congressional laws and could annul some of them, could find them unconstitutional. And that's the system here too.

And I think that it's the Midrash says-- one of the commentaries is, in the book of Ruth, it says-- and I'm saying that this issue, we should have something of Torah in our discussion-- in the book of Ruth, it said [HEBREW], it occurred in the days when the judges were judging. And one of the Midrashim, I believe, says [HEBREW]. That is, what kind of generation is that judges its judges?

So the system is that there are-- the judges are checking, and they may make a mistake. But it is always reasoned, very always reasoned. And I always-- tell you something. I told you I wrote a book about the history of the beginning of the court. And I wrote it also in a court decision. We should be admiring the first justices, the first generation of justices. My generation, you look at the eyes of the politicians. It's a part of a functioning system.

In those days, they had to build the prestige and the independence of the court, versus who were the lawyers, very respected lawyers. But who were they versus Ben-Gurion? Who were they versus the founding fathers? They had to really build a system from-- I wouldn't say scratch because there was something in the mandatory period. But as a state, as an independent state, they had to build a tradition, and they have succeeded in that.

And as many people say, we build our jurisdiction or our decision-making on the shoulders of the former justices and each generation. That's why you have precedents. You quote them. And I'm proud, personally. It was mentioned to have-- Miriam Markowitz mentioned it. I'm proud to have contributed something to the inclusion of Jewish law, Hebrew law, in the decision of the court. We have so rich a tradition in this respect, a huge treasure of law. And of course, I'm not an expert, like, let's say, Justice Elon in the former generation. But I have felt this as a mission to give a voice to the Jewish traditions.

And one last point, which has nothing to do with that-- sometimes, when there is a decision by the court to demolish houses in the settlements that were built on private Palestinian land, there is an uproar on the part of the settlements and the people and their supporters. But many a time-- and I personally have many friends there, so it's not a question of time. I've been involved with them for many years in many respects.

But what people forget that the court has never interfered in settlements built on government lands, which means it-- and that helped internationally because internationally, the whole settlement enterprise is being criticized as illegal, as a grave illegality. The court has never, ever interfered in government-built settlements, which meant that-- and that's 99% of-- which meant that, internationally, because the court is respected internationally, it softened to a great extent this criticism. And I'm mentioning this because it has been a phenomenon which goes back to the '67, and '70s, '80s, '90s, and so on.

[ALAN KADISH] That's great. Let's turn now to-- you mentioned that you participated in demonstrations. And I would say, personally, also, I agree with much that you've said, even though I've, as I've said, played the devil's advocate a little bit here. But tell us a little bit about the proposed reforms and why you think they would weaken the justice system in Israel. And then, perhaps, we can talk a little bit about the call for compromise, which has been made by many people, including the US president, in the last 24 hours.

[ELYAKIM RUBINSTEIN] First of all, I'm told that the president of Israel, President Herzog, whom I'm friendly with, who has been working very hard to achieve a compromise, is giving 8:00 tonight a special speech to the public, which is unusual. I don't know if it is-- what is the contents of that speech, but it relates to this, so I can pray that maybe he achieved a result in his efforts. But we will have to hear the points that are in the government's proposals.

One is the override. That is, if the court decides that a court-- a Knesset decision or act or Knesset law is unconstitutional, the Knesset, by a 61 majority-- that is, the majority of the current coalition or any coalition-- could override it, overrule it. This is one proposal-- I said my criticism is simple. It's not needed. It has become a slogan. But I don't want not to express my opinion that it's not needed because of the number of decisions to overwrite Knesset laws is being so low, 22 out of 470. That's one proposal.

The other proposal is to--

[ALAN KADISH] Justice, before we go on to the next one, would you oppose any override with any number of Knesset votes?

[ELYAKIM RUBINSTEIN] Let me say this. I don't think it's necessary. But if they already wanted so much because it becomes a slogan, if you have 75 or something like that, I would say, OK, that's a substantial majority. They looked at it, OK. But not 61. So again, I'm against the whole thing, but I can live, so-to-speak, with a substantial majority in the Knesset.

The next thing is the extreme reasonable-- and we don't have the time, I assume, but I could come up with examples which show why this a extreme reasonability is important and helps human rights give you one example. There is a karaite community in Israel. The karaites are an ancient Jewish denomination that was established around the end of the first millennium. And they are about-- they say there are 30,000. I don't know if it's the number is accurate in Israel, just 30,000. And they had their [HEBREW], their own slaughtering. And they also have their own divorce procedures.

And there was a problem because they are not in the law. There's no law that governs their whereabouts. And they came to the court because there was no slaughtering place that would give them the ability to slaughter on their own, and also about divorce.

I happen to sit at the head of the two panels. In our court, I should mention to the audience, our court is sitting in panels, except for in important cases, like constitutional cases, where it's a wide panel of 11, could be even 13 or whatever. The number is 15, by the way. The court has 15 justices. I think now-- I'm not sure. I think five are women, and there's one Arab justice. There are a couple of justices, a few that are from the more religious circles.

In any case, we told the government, and they were hoping that we'll tell them, it's extremely unreasonable that this ancient denomination would not have the ability to practice their own traditions and laws. And that's what we decided, and it was accepted. So how did we decide it on this basis? So that's the second--

--concern you have.

The third one, I think, is a-- I want to jump to a couple of other points. They want to change the composition of the selection committee-- that is, to have eight-- now it's nine people-- to eight politicians or politically-appointed people and three justices. So what will be the three justices? What will be their-- they can speak. OK, freedom of speech-- first amendment. But what can they do?

I want to mention also the idea that the government should not be bound by legal advice, and that is--

[ALAN KADISH] Can you explain what the legal advisor is and how that functions before you-- because I don't think many people may be familiar with that.

[ELYAKIM RUBINSTEIN] Every government ministry has a legal advisor which advises the minister and the officials on legality of policies and of X. I was the legal advisor of two ministries, the foreign affairs and defense ministries. And then there is the attorney general, who, besides being the chief prosecutor, is also advising the government and ministers who oppose the decisions of their legal advisors could, quote unquote, "appeal" to the attorney general to get his or her opinion. Now the first time we have a woman as attorney general.

So the tradition is that the legal advisors would tell the ministers what is lawful and what is not, and that would be the position that would be presented by the government in the High Court of Justice and, of course, under the supervision of the attorney general.

What they now want is to free the ministers from that element and to enable making the policy without being bound by the-- and I'm afraid this is the idea of what we call in Hebrew and also in Yiddish, [YIDDISH], which means you have something we're very elastic, very flexible. And you want the rule of law. I don't say that legal advisors cannot make mistakes. I don't say that, in rare cases, ministers can have-- which I gave as attorney general the opportunity to present before the court their ideas against a decision, a few cases. But the rule should continue.

And what's now suggested-- I've said I have to say that because I am a public official all my life, and I think, by and large, the legal advising has done a lot of good. I don't know if we are about to finish, but if not, I'm going to put up the light because once we-- just a second.

[ALAN KADISH] Sure.

[ELYAKIM RUBINSTEIN] I saw that I was sitting in the dark, and as the dusk is coming. So that's why I put up the light.

[ALAN KADISH]As far as we can tell, you've never been sitting in the dark, justice.

[NAHUM TWERSKY] We always want you to be illuminated.

[ELYAKIM RUBINSTEIN] Thank you very much.

[ALAN KADISH] I'll just have a couple of last questions from the audience, and then we will finish up. One question-- we've answered a couple of the questions already, particularly several from Harry Valen that have been great. But one additional question is if the Supreme Court can override rabbinic law, isn't it possible that politics will be influencing those decisions, since this is a very hotly-contested political issue in Israel?

[ELYAKIM RUBINSTEIN] I say two things. One is we do not override [HEBREW] decisions. We overrule the court if there is a deviation from their jurisdiction or if natural justice was affected, not [HEBREW] decisions. And I dealt with many cases, many cases connected with the rabbinical courts and the chief rabbinate and, basically, the court is cautious in not stepping into the [HEBREW] area.

And I mentioned that we deal with also Muslim courts, Christian courts, Druze courts. I remember once, I chaired a conference which we put up religious judges from all those denominations and also the judges of mainly family court, and it was a fantastic view. You see the rabbinical judges, with their long beards and their black robes, and the Christian priests with their robes, and the Druze with big white hats. And it was really very colorful. And I always remember it. I did it three times to chair such conferences.

[ALAN KADISH] That's great. Well, it's been a pleasure. I have one last question that's very brief. One of the listeners wants to know when your autobiography is coming out.

[ELYAKIM RUBINSTEIN] I wish I knew. I'm trying to work on it, but since I retired-- in Israel, I only volunteer. And if you volunteer, people want you because it doesn't cost. So I chair committees, I lecture a lot. I teach in the Hebrew U two courses. And my wife is really mad at me for not making progress in the autobiographical enterprise. So I would like to be able to tell you it's coming, but it'll take time, unfortunately. That's the problem.

And here now, with a lot of dealing with this reform.

[ALAN KADISH] And it's keeping you busy.

Well, I can tell you that we're all looking forward to it. And I really appreciate your candor and your remarks today.

[ELYAKIM RUBINSTEIN] And thank you very much, Dr. Kadish For your questions, your patience. Thank you very much.

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[TEXT] Touro Talks, Touro University, touro.edu/tourotalks

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