The Conservative U.S. Group Trying to Transform Israel's Justice System

With inspiration and cooperation from the Federalist Society, the organization that’s behind the appointment of most of the U.S. Supreme Court justices, the Law and Liberty Forum has the money, connections and clout to spur a similar process in Israel

Send in e-mailSend in e-mail
Send in e-mailSend in e-mail
Go to comments
Daniel Friedmann
Ayelet Shaked
Avi Bell
Aylana Meisel
Moshe Koppel
Yonatan Green
Richard Epstein
Jay Lefkowitz
Nettanel Slyomovics
Nettanel Slyomovics

At the beginning of 2018, Ayelet Shaked, Israel’s justice minister at the time, set out to nominate a Supreme Court justice. Her preference was for a conservative jurist with a legal education and résumé sufficiently impressive to clear the high bar set by the Judicial Appointments Committee. She was taken aback to discover that she didn’t have a nominee who fit the bill. Her only option was to import a candidate. The result: a little-known legal scholar, Alex Stein, was invited to return from the United States, where he had been living for almost a decade and a half since leaving Israel with his family, as he had acquired professional experience that would meet the criteria.

About a year later, the first, festive Conservatism Conference was held in Jerusalem, sponsored by a Jewish organization from the United States, the Tikvah Fund, which describes itself as a “philanthropic foundation and ideas institution.” One of the questions on the agenda was “how to find a cadre of young conservative intellectuals.” The challenge was raised by Prof. Moshe Koppel, chairman of the computer science department at Bar-Ilan University, and chairman of the Kohelet Policy Forum, a sister organization of Tikvah’s whose aim is “to secure Israel’s future as the nation-state of the Jewish people.”

Both Kohelet and Tikvah are right-wing in inclination, and seek to influence policy makers in politics, the economy and the media. Among the achievements for which they claim credit: the enactment of the Basic Law on Israel as the Nation-State of the Jewish People, and the 2019 declaration of U.S. Secretary of State Mike Pompeo that Israeli settlements are not in violation of international law.

The answer to Koppel’s question about finding conservative intellectuals began to emerge in January 2020, when the Tikvah Fund launched a new initiative: the Israel Law and Liberty Forum. The forum’s solemnly declared aim is to advance a “conservative legal worldview” among Israeli jurists, according to its website. In its first year, the coronavirus pandemic notwithstanding, the organization founded two student chapters, at the law faculties of Hebrew University of Jerusalem and Tel Aviv University; organized student debates, in some cases via Zoom, and a writing competition; and ran a summer seminar for “Israel’s top law students.”

The forum’s website also declares its intention to establish a community of legal professionals who “identify with one or more” of four concepts, which it describes as basic to American conservatism: “judicial restraint, separation of powers, individual liberty and limited government.”

Prof. Moshe Koppel at his office in Efrat.Credit: AP

“Our work,” claims the forum, “is inspired by and conducted in cooperation with the U.S.-based Federalist Society” – referring to one of the most influential right-wing organizations in Washington. “There is no formal relationship, it’s a tie of friendship,” says attorney Yonatan Green, executive director of the Israel Law and Liberty Forum. “We don’t report to them or anything like that. It’s fitting to call it emulation or inspiration, and we say that with pride.”

The choice of the object for emulation and inspiration indicates a clear goal: revamping the Israeli judicial system from the ground up, based on the mode of operation used so effectively by the Federalist Society. Haaretz looked into the principles and activities of the new forum, as well as those of its declared source of inspiration, which reshaped the makeup of the U.S. Supreme Court.

The Israeli initiative is operating with the long-term goal of creating a foundation for a new judicial community, beginning on campuses, driven by powerful ambitions. The means to accomplish this involve the creation of a network of ties around a common denominator, while at the same time removing obstacles that are liable to split the right wing.

Green and others flew to Washington in November 2019, ahead of the forum’s establishment, in order to get firsthand knowledge of the Federalist Society for Law and Public Policy Studies, as it is known in full. Joining them on the trip was Gil Bringer, a legal expert who was Shaked’s adviser in the Justice Ministry and was in charge of finding suitable candidates for judgeships on her behalf.

“It turned out that we had meetings in their offices and also attended their annual conference, and during breaks on other days we also met with American judges, writers, bloggers, lawyers, professors and all sorts,” Bringer recalls, noting that among those he was introduced to were two Supreme Court justices, Neil Gorsuch and Brett Kavanaugh.

Ayelett Shaked.

Green explains why it was advantageous for the forum to draw on the Federalist Society: “The process is facilitated when there is an organization that you emulate to a certain degree. If you come from day one and say, ‘We’re going to set up an organization that’s similar to organization X,’ a lot of your questions are already answered.”

Founding father

The Federalist Society, it bears noting, is the most influential legal organization in the United States, and not by chance. For the past three decades, Republican presidents have invited the society to suggest candidates when there is an opening on the Supreme Court. The result is that no fewer than six of the nine justices currently on the bench were pushed, and in many senses also groomed, by the society. And five of those were chosen by two presidents who accepted recommendations from one individual in particular: the Federalist Society’s co-chairman, attorney Leonardo Leo, whose preferred channel for operating is behind the scenes.

The flagship activity of the Israeli forum, says Green, is debating events, writing competitions and seminars that promote the reading of conservative legal thinkers that are not covered in law school. 'Repressed voices,' Bringer calls them.

This is the current state of affairs. However, when the Federalist Society was founded, in 1982, not even those who were present could have foreseen how much power one campus-born organization would accumulate. They sprang from a grass-roots initiative by three law students at the University of Chicago and Yale, who could not abide the liberal approach of the majority of the teachers on their respective faculties. They founded the society to promote lively discussions involving conservative legal thinking.

In short order they discovered that demand exceeded the supply. Conservative students, and even professors who espoused a similar philosophy, viewing themselves as an ideological minority at their institutions, were delighted to join.

The society’s most eminent patron was Antonin Scalia, then a law professor at the University of Chicago, who would subsequently become dominant on the Supreme Court and one of the progenitors of the “originalist” school of fundamentalist legal thought. Another leading figure was Richard Epstein, one of the leading libertarian legal scholars in the United States. With the aid of the law-school teachers who counseled them, the society’s leadership met well-connected donors who were happy to underwrite their activity. The collective aspiration was to educate young people by offering an alternative mode of thought to the standard curriculum.

Similar complaints about a lack of pluralism could be heard in Israel last month, when Prof. Daniel Friedmann, a former justice minister and currently the chairman of the Law and Liberty Forum’s Israeli advisory board, spoke at an event of its student chapter in Tel Aviv University. Said Friedmann: “I don’t know how diverse the material you get from the teachers is and how far it expresses different approaches; to what degree you see only material written by your lecturers or by people who harbor the same views they do; and whether you are given material of other kinds. I will be very happy if this forum will enable you to see material of a sort that I’m not sure is given expression in regular faculty teaching.”

Ehud Olmert and Prof. Daniel Friedmann in 2009.Credit: Emil Salman / JINI

In the United States, this strategy proved effective during the Federalist Society’s first year of existence, when 17 chapters were founded at law schools around the country. Today there are chapters in 200 institutions of higher learning there.

The Federalist Society provided “a social club for students to come comfortably out of the political closet,” Michael Avery and Danielle McLaughlin noted in their 2013 book “The Federalist Society.” This provided the society with its major drawing power for young conservatives on campuses in its early days, and this is expected to be the case with the Israeli forum as well.

But already in the society’s first decade of existence, it was obvious that it was bursting through an open door in the conservative political world. The Reagan administration, notably in the person of presidential counselor and later attorney general Edwin Meese, encountered a problem similar to the dilemma that confronted Shaked more recently in Israel. Meese was hunting for ardently neoconservative jurists who were not inclined to compromise. This spawned a connection, which since then has only become increasingly intense, between Republican administrations and the Federalist Society.

In a rare interview – with The New York Times, in 1986 – Steven G. Calabresi, one of the society’s three founding students, today a professor of law at Northwestern University, boasted about how much influence the organization had accumulated in the few years since its founding. Already then he noted that half of the 153 appointments to the Reagan Justice Department at that point were either members of the Federalist Society or had taken part in events it sponsored. “Obviously, we do not run the Justice Department,” he said. “But we definitely have had an influence in terms of bringing in conservatives who otherwise would not go into government.”

The secret of the Federalist Society’s strength lies in its creation of a community, or an informal network, revolving around it. In the events it holds, the society organizes discussions between proponents of different right-wing streams, which is both an effective educational platform but also a good way to build the network. The ties to the centers of power gave rise to another layer of influence, this one covert, when the leaders of the Federalist Society became something akin to an unofficial head-hunting agency. With the recommendations of law school faculty and other figures involved in the campus chapters, they are the ones who decide which students deserve prestigious scholarships sponsored by the society. Later, these select young people are the recipients of highly influential recommendations for judicial clerkships, followed by employment in the judicial, political or even the business arenas.

Credit: Eran Wolkowski

Wrote Avery and McLaughlin: “During the Reagan Administration membership in the Federalist Society was a passport to career opportunities,” beginning in the Justice Department. They then went on to say that, “the same has remained true with Republican presidents since then.” As the society grew and became increasingly influential, membership also became a necessary condition for clerkship with conservative judges.

Supreme Court Chief Justice John Roberts – as well as the two most recent arrivals to the court, Brett Kavanaugh and Amy Coney Barrett – all clerked for the Supreme, and later served on the team of lawyers who worked on behalf of George W. Bush in the legal dispute over the 2000 presidential election in Florida. All three had been recommended for their clerkships by Federalist Society board chairman Leonard Leo. “Leo is the leader, but you won’t hear from him, because he’s behind the scenes,” noted New York Times reporter Eric Lipton in a recent interview with the Democracy Now! TV show.

Israeli franchise

Unlike the Federalist Society, which began as a student initiative and grew over the coming years, the Israel Law and Liberty Forum embarked on its mission from a different point of departure and perspective. Upon its launch, the local organization already enjoyed power, capital and an extensive organizational infrastructure. More important, it was able to learn from the parent organization in Washington. An examination of its activity in the past year shows similarities to the initial patterns of activity of the Federalist Society.

The forum’s executive director, Green, 33, is in charge of establishing the student chapters. The flagship activity, he says, consists of debating events, writing competitions and seminars intended to promote the reading of conservative legal thinkers who are not covered in courses in the law schools. “Repressed voices,” Bringer calls them. Green emphasizes, “We do it in the most non-subversive possible way, but in cooperation with the law faculties. It’s all open.”

The debates usually pit leading legal experts and scholars from the liberal school of thought against more veteran conservative jurists, many of them from the Kohelet Policy Forum. In some recent cases these events took place via Zoom, because of the coronavirus crisis, but the virus didn’t prevent the holding of the first summer seminar: a two-week event that took place in a Jerusalem hotel, with “outstanding students” given a 3,000-shekel ($880) scholarship to participate. The only requirement was “to read great ideas, masterpieces and issues on the agenda written by leading thinkers and public figures.”

‘Within X years, every right-wing organization becomes a left-wing organization,’ Prof. Koppel warned his conservative audience. One way to avoid that is ‘not to recruit management personnel on the basis of skills.’

“It all starts with the legal education,” Green says. But along with offering aspiring lawyers conservative content at a critical juncture in their careers, the Federalist Society also became known for its networking, by means of which young conservatives are helped to advance with the guidance of the society and become gatekeepers for the right-wing point of view. Accordingly, the members of the society, who today number about 70,000 students, practicing lawyers, academics and judges, provide a critical aspect of the ability to get to know, meet and form impressions of people.

In Israel, the informal element of networking is already in operation via other educational projects of the Tikvah Fund. The chairwoman of the Israel Law and Liberty Forum, Aylana Meisel, who is the deputy director of Tikvah Israel and heads its student educational program, referred to this in a promo for last year’s conservatism conference. “We have over a thousand alumni here in Israel [of Tikvah programs] – students, journalists, researchers, academics, rabbi, businessmen and many, many others. It’s a growing community brought together by important questions and big ideas,” she says.

Asked to respond to a number of questions about the Law and Liberty Forum’s goals, methods and funding, Meisel issued the following statement to Haaretz: “The Israel Law and Liberty Forum seeks to diversify and deepen the judicial dialogue in Israel, to offer an alternative to the currently prevailing legal approach, and to serve as a platform for the conservative judicial worldview, which espouses the principles of individual liberty, separation of powers, judicial restraint and limited government. On the forum’s agenda is every legal issue of principle that relates to the forum’s approach. The forum’s source of financing as of now is the Tikvah Fund.”

The declared aspiration is to have a presence in Israel’s “six best law schools,” though in the United States that was only the beginning. “Of course we have a strategic vision, but on the other hand we are modest in our approach. We are in a learning process. We are out to see what works and how we should make decisions,” Green notes, again citing the inspiration of the Federalist Society. “We are working under the inspiration of an organization that has existed in the United States for 40 years. So occasionally, when we wonder what the future will hold, we look at them and say, ‘Okay, maybe it will look like that.’ In the United States, lawyers and jurists who are not students are very much involved.”

The social network

An examination of the activity of the Israeli forum turns up a dense and intersecting web of ties between the Israel Law and Liberty Forum, the Tikvah Fund, the Kohelet Policy Forum and the Federalist Society, extending from Jerusalem to Washington and New York. Most of those involved in the Israeli forum possess rich experience in the right-wing legal community in Israel and the United States. The dean of the summer seminar is Prof. Avi Bell, from Bar-Ilan University, who is a senior fellow at Kohelet and more recently was a candidate for the post of the legal adviser to the Knesset. Bell has contributed much to developing the legal arguments intended to limit Israel’s need to adhere to international law. Among the other speakers in the seminar: Shaked, Bringer and also Ran Baratz, Prime Minister Benjamin Netanyahu’s former media adviser and head of public diplomacy, and the founder of the conservative news site Mida, also underwritten by the Tikvah Fund.

Prof. Avi Bell.Credit: Tomer Appelbaum

Green: “It’s clear that the fund initiated us, finances us and sees us as a very important, cardinal project. The project is considered extremely important and estimable, so it’s only natural for them to be involved. Obviously, major strategic decisions are made with the Tikvah Fund’s cooperation.”

Indeed, the activity of the Law and Liberty Forum would appear to dovetail with the general activity of the Tikvah Fund, under whose auspices the forum operates. Tikvah is a private organization that was established in New York in 1992 with the aim of “promoting conservatism and Judaism.” Its endowment derives largely from the estate of the late investment manager Zalman (originally Sanford) Bernstein, and as of 2019 its assets were valued at $121 million.

The Tikvah Fund’s board includes such eminent American conservatives as political thinker William Kristol. Another member is attorney Jay Lefkowitz, who was an adviser to the George W. Bush administration, and who worked together with Brett Kavanaugh both there and in a private firm before Kavanaugh’s appointment to the Supreme Court. Lefkowitz is also known for negotiating the federal plea bargain that saved his client Jeffrey Epstein from a lengthy prison sentence for sex crimes in 2008.

With economic, political and above all organizational support network in the United States and Israel, the Law and Liberty Forum was ready to get started.

In his speech to the conservatism conference last year, Kohelet chairman Koppel shared an insight he had gleaned from his lobbying activity. “Within X years, every right-wing organization becomes a left-wing organization,” Prof. Koppel warned his conservative audience. “It’s tried and true. Several things need to be done. One is not [emphasis added] to recruit management personnel on the basis of skills – it’s necessary to ensure that a foundation exists for a partnership of ideas. Take only people who are allied with the organization’s approach and goals.”

The new legal forum is only the latest initiative of many to which Koppel’s name is linked, as part of the effort to identify and educate right-wing legal personnel. The Tikvah Fund, whose board he belongs to, maintains ties with the law faculty of the public George Mason University in Virginia – which was renamed in memory of Antonin Scalia in 2016, with a donation that Federalist Society chairman Leo helped solicit from conservative philanthropists David and Charles Koch. Two of the faculty at the school are members of the Kohelet Policy Forum, and last year, Kohelet offered a full scholarship for a master’s degree at the law school, as well as an internship at a Washington think tank.

"Studying the gospel of Justice Scalia."

‘Perfect’ CVs

The decision to import to Israel the modus operandi of the Federalist Society obviously entailed some adjustments to the local system. In America, the Federalists channel those they choose to judgeships and to high-level positions in the administration by persuading one person from one party: the president of the United States, at least when the president is a Republican. In Israel, by contrast, the Justice Ministry is not necessarily held by the same party as the prime minister belongs to, and judges are chosen by a nine-person committee: two cabinet ministers, two MKs, two representatives of the Bar Association and three sitting Supreme Court judges.

The challenge only grew in the light of Israel’s electoral system, with a fluid bloc of right-wing parties instead of one right-wing party. Some of them are far from adhering to the values of free-market neoliberalism – notably the ultra-Orthodox parties, which depends on perpetuation of the welfare state – but MKs in most of the right-wing parties also identify with a so-called social agenda. Koppel noted the need for unity on the right in his speech at the conservatism conference, urging activists to unite around what they have in common, and to avoid divisive subjects that might undermine the right-wing base, such as issues of religion and state, as well as abortions.

Still, the experience of the Federalist Society shows that if the Law and Liberty Forum wants to follow in its path in Israel, it is feasible. The society’s success in the U.S. was effected thanks to its ability to fill a void by identifying and grooming candidates at the outset of their career and connecting them to professional opportunities. The result is “perfect” CVs of the sort that Shaked looked for but couldn’t find.

Yonatan Green emphasizes that he’s occupied with activity on campuses and with creating an impressive online library of conservative legal thought. Although he’s cognizant of the potential of an individual organization of its type to forge a connection between conservatives, he says that’s not his focus. “It’s very personal,” he says. “Every graduate who will approach us and tell us, ‘Guys, I’m looking for some sort of a job,’ on the assumption that we think they are worthy – not every graduate will necessarily receive our automatic blessing, but in general, the absolute majority – we certainly want to help them. Definitely. A typical characteristic of a community is mutual aid between friends.”

Asked about the possibility of being instrumental in the future appointment of judges, he asserts that this is “not the goal,” but notes that it could be a by-product. Green again draws a comparison with the Federalist Society: “It’s acquired the reputation of being a manipulator of judgeship appointments. That is certainly not what we want to do, and I am also very sure that it’s not what the Federalists are doing. But when you become, de facto, the house organization of conservative jurists, one outcome is that, in the search for conservatives in the judicial system – let’s say a senior appointment – they will turn to you first. That’s all it means.”

Click the alert icon to follow topics:

Comments