Friends in high places

On the face of it, Court President Aharon Barak's determination to thwart Justice Minister Tzippi Livni's desire to appoint Professor Ruth Gavison to the Supreme Court seems natural enough. Gavison has been the most prominent and articulate critic of Barak's judicial activism, accusing the Court of having undermined its own legitimacy by transforming itself from a supreme judicial authority to a supreme moral authority.

Yet Barak is paying a heavy price for his opposition – a fact of which he is doubtless aware. Given Gavison's international stature in constitutional law, her appointment cannot be opposed on grounds of competence. Barak's claim that he opposes academics on the Court won't wash. He recently proposed Professor Nili Cohen for the Court, and once pushed his former Hebrew University colleague and friend Professor Yitzchak Englard onto the Court.

Thus the only basis for the opposition to Gavison by the Court-bloc on the judicial appointments committee and their loyal factotums from the Bar Association is philosophical. For an intellectual heavyweight like Barak to appear to flee intellectual debate in this fashion must be galling.

Even worse than the personal humiliation, Barak, the master strategist, is providing powerful ammunition to critics of the current judicial appointments process. The primary criticism of the judicial appointments process is that the large voice given to sitting Supreme Court justices in the selection process fosters an unduly homogenous Court. There are three justices on the nine-member appointments committee, who traditionally vote as a bloc, and can generally count of the loyal support of the two Bar Association representatives. No candidate has ever been appointed without the unanimous assent of the three justices.

Ironically, no one has been a sharper critic of this selection process than Gavison herself. She has described the Court as "a kind of closed sect, which is too uniform and which effectively perpetuates itself" through the judicial appointments process. In opposing Gavison on ideological grounds, the justices on the appointments committee have demonstrated that the critics are right: the Court uses the judicial appointments process to perpetuate its own judicial philosophy.

Once Barak could have gotten away with this. In the old days, the media could be counted on to repeat Barak's mantra that Israel's unique method of judicial selection is the envy of the entire world, and to ignore dissenting views in the legal profession and academia. By sharply limiting the input of the elected branches, the appointments process was said to ensure an independent judiciary of the highest quality.

That aura of perfection has long since worn thin. Knesset Law Committee chairman Miki Eitan's chacterization of the judicial appointments process -- "a friend brings a friend" -- 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 meetings of the appointments committee. And prior to the appointment of 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 Coalition Whip Gidon Saar and Labor MK Yuli Tamir calls for public hearings on nominees and for a secret ballot 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, and is considered likely to pass.

Tel Aviv University law professor Daniel Friedman goes 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.

If opposition to the Gavison appointment strengthens the hand of opponents of the current judicial selection process, why is Barak being so obstinate in opposing her? After all, Gavison would be one of only 14 justices on the Supreme Court. Barak would surely have many means at his disposal to neutralize her influence. And in some ways she poses as great a threat to Barak's constitutional vision in her position as the primary consultant to the Knesset Law Committee's constitution-drafting efforts.

Clearly Barak is concerned about protecting his judicial legacy. Though he will leave behind a number of ideological clones on the Court, none of them possess anything like his towering intellect or international reputation. In recent years, the Court-bloc on the appointments committee has had to engage in more horse-trading than formerly to secure the appointment of its preferred candidates. As a result, a number of the recent appointments to the Court show more interest in traditional legal subjects than in governing the country from the bench under the slogan "everything is justiciable."

After Barak's slated retirement next year, Gavison would likely emerge as the most formidable thinker on the Court, and she might well attract to her banner a number of the more technocratic justices. To perpetuate judicial rule of "the enlightened public," whose values he has made the guiding star for Israeli judges, Barak has no choice but to oppose Gavison -- no matter how high the price.