Not in his image

A fascinating confrontation over the next round of appointments to the Israeli Supreme Court is shaping up. Justice Minister Tzipi Livni, who heads the judicial appointments committee, has threatened not to convene the committee unless her candidate, Professor Ruth Gavison, is confirmed. Meanwhile three vacancies on the Supreme Court – two permanent justices and one temporary justice – remain open.

Court President Aharon Barak, Justice Dorit Beinisch, who is slated to succeed Barak as court president in 2006, and Justice Eliezer Rivlin oppose the appointment of Gavison, as do the two members of the Bar Association on the judicial appointments committee. At present, Gavison can count on only three votes on the nine-person committee. Gavison's candidacy is supported by two previous presidents of the Supreme Court, Moshe Landau and Meir Shamgar, and a number of other leading academics and judges.

Livni's obstinancy is not something that Court President Barak is used to confronting. In the old days, he would settle these matters in a closed-door meeting with whatever justice minister happened to be in office at the time, and without having to leave too many fingerprints. Since Yossi Beilin's days as justice minister in the government of Ehud Barak, however, Barak has found himself engaging in far more horse-trading over judicial appointments than ever before. (Only Tommy Lapid, among recent justice ministers, fulfilled the traditional role of Barak's poodle.)

The horse-trading that the three-member Supreme Court bloc on the appointments committee has had to engage in to secure the appointment of its preferred candidates has resulted in the appointment of a number of new justices who were not the first choices of the Supreme Court bloc. While it is still true that no candidate has ever been appointed to the Supreme Court without the unanimous consent of the three Supreme Court justices on the appointments committee, their ability to completely control the process has decreased in recent years.

At the same time, Israel's unique system of judicial selection is no longer above criticism or suspicion. No other judicial selection system in the world gives sitting justices of the Supreme Court so much control over the selection of their future colleagues and eventual successors. The Supreme Court bloc can usually count on the loyal support of the two Bar Association representatives, since the latter may one day find themselves appearing before the Supreme Court, and thus an absolute majority on the nine-member selection committee.

Moreover, no system in the world provides for so little input from the elected branches of government in the selection process of justices. There are three seats allocated for Knesset members and one for the Justice Minister (who is usually also a Knesset member). But one of the Knesset members must be from the Knesset opposition, further limiting the governing coalition's power in the selection process.

Israel's unique judicial selection used to be routinely described by Israel commentators as the envy of the world. But that aura has begun to wear thin. "A friend brings a friend," is how Miki Eitan, chairman of the Knesset Law Committee describes the system, and the label has stuck. A number of recent legislative initiatives have been aimed at limiting the power of the Supreme Court bloc. Last year, the Knesset passed a law forbidding the three justices from agreeing on their own list of candidates in advance of the meetings of the appointments committee, though the law was more honored in the breach than the observance. And prior to the appointment of State Attorney Edna Arbel to the Court, the Knesset Law Committee took the unprecedented step of holding public hearings on the nomination.

A new bill introduced by Likud Coalition Whip Gidon Saar and Labor MK Yuli Tamir calls for public hearings on nominees and for a secret ballot on the nominees in the appointments committee. The latter proposal is designed, inter alia, to limit the intimidation factor of the Supreme Court bloc on the Bar Association representatives. The proposal is considered likely to pass.

Tel Aviv University law professor, Daniel Friedman has gone even further. He proposes excluding all currently sitting justices from the being members of the judicial appointments committee and having a separate body prepare a list of nominees.

Ironically, no one has been sharper in pointing out the failings of Israel's system of judicial selection than Gavison herself. She has accused the Supreme Court of becoming "a kind of closed sect, which is too uniform and effectively perpetuates itself."

The tendency towards intellectual homogeneity produced by the current system of judicial selection is even more dangerous in Israel, where, Gavison notes, the Supreme Court has taken a larger role in determining the basic societal norms than any other high court in the world. The further the Court moves from the technical legal issues of torts and contracts to the determination of basic societal values, the more important that it reflect the wide ideological range of Israeli society.

Gavison has been highly critical of the Supreme Court's transformation from supreme judicial authority to supreme moral authority, a transformation which, in her view, undermines the Court's legitimacy. "As a moral authority," she says, "it is far from clear that the Supreme Court is better than Rabbi Ovadia Yosef. . . . The Court should not compete with Rabbi Yosef . . . . It should make clear that it functions in a different space."

THE QUESTION REMAINS: Why has such a wily politician as Aharon Barak chosen to go to the trenches to oppose the Gavison appointment. He would surely know how to neutralize her on the Supreme Court, where she would, in any event, be only one of 14 justices. Indeed she arguably constitutes a greater threat to his constitutional vision by virtue of her leading role in the constitution-drafting process now underway in the Knesset Law Committee.

Given Gavison's international stature in constitutional law, Barak and his obedient followers on the judicial appointments committee cannot attack her candidacy on the grounds of competence. (Occasionally Barak tells reporters he opposes the appointment of academics, but he himself once pushed his friend Professor Yitzchak Englhard on to the Supreme Court, and more recently nominated Professor Nili Cohen.) Thus he is left nakedly opposing her candidacy on the grounds that her judicial vision is not one that should be heard on the Supreme Court.

By doing so, Barak has provided potent ammunition for opponents of the current selection system on the grounds that it fosters intellectual homogeneity. And for an intellectual of Barak's stature to give the appearance of publicly fleeing from intellectual combat in this fashion must be particularly galling. Why would he subject himself to this humiliation?

When he retires next year, Barak will leave behind a number of ideological clones, but no successors of his towering intellect or international prestige. Gavison would likely emerge as the most formidable intellect on the Supreme Court. She might well attract a number of the more recent appointments, who show more interest in traditional legal subjects, like torts and contracts, than in governing the country from the bench, to her banner of judicial restraint.

To perpetuate his philosophy that "everything is justiciable" and the rule of the "enlightened public," whose values he explicitly said should guide Israel judges, Barak must make sure that Gavison does not take a seat on the Supreme Court.

Hamodia in the Knesset:

I am frequently asked whether there is any point to my frequent carping about the Israeli Supreme Court. The truth is that most columnists must entertain doubts about their own impact.

But as this column makes clear there are clear signs of greater public awareness of the anomalies in the Israeli judicial system and the problems with the current system of judicial appointments. Such changes depend on the cumulative impact of many critics of the Supreme Court.

As it happens, my column two weeks ago on the Supreme Court's treatment of the proposed Lev L'Achim outreach center in Rechovot was discussed in the Knesset Law Committee last week. The subject of the discussion was whether the constitution should allow for exclusively Jewish communities – something the Supreme Court banned in the Katzir case, though it had previously recognized the government's right to create exclusively Beduin communities.

Uri Regev, founder of IRAC, launched into an impassioned plea that Jews not force non-Jews to live apart, as Jews were forced to live apart for millennia. He began listing places in which Jews lived in segregated ghettos. At that point, Professor Moshe Koppel of the Israel Policy Center interjected, "And Rechovot." Regev tried to ignore him, but Koppel persisted.

Finally, Regev, whose organization has been leading the battle against the Lev L'Achim center, had no choice but to respond. He stated that he is in favor of secular yishuvim (settlements) that don't have to allow religious institutions in their midst. Koppel asked, "Like Rechovot?" Regev amended his position to favoring secular neighborhoods with no religious institutions.

In recounting this exchange to me, Professor Koppel mentioned that he only remembered the Rechovot example because he had read the previous column in HaModia.