Immoral Enemies

"Immoral enemies make stupid mistakes," old-time labor organizier Saul Alinsky used to say. The November 13 speech by Aharon Barak, President of the Israeli Supreme Court, outlining his reasons for opposing the appointment of Professor Ruth Gavison to the Supreme Court is a prime example of Alinsky's adage.

To fully appreciate the extent of Barak's mistake it is crucial to remember that the man is considered a genius by supporters and critics alike. And yet his speech consisted entirely of arguments easily refuted by a high school debater. As Ben-Dror Yemini summarized the matter in Maariv, "Even Barak doesn't believe Barak."

A man of Barak's intelligence does not, under normal circumstances, make a fool of himself. Even more galling from Barak's point of view, he provided the most potent ammunition possible to critics of Israel's unique method of judicial selection and to the judicial activism of the Israeli Supreme Court in general.

The tenor of Barak's arguments can best be gauged by his off-hand remark that he considers Gavison a friend. Were he to approve her elevation to the Supreme Court, he suggested, he might be accused of "cronyism." That is rich considering that Israel's unique method of judicial selection, in which the three sitting Supreme Court justices on the nine-person judicial selection committee vote as a bloc, has been characterized by Knesset Law Committee Chairman Miki Eitan as "a friend brings a friend."

That was the case when Justice Barak overcame the initial objections of some of his Supreme Court colleagues to the appointment of Dorit Beinisch to the Supreme Court. And it was similarly the case when Beinisch pushed through the appointment of her dear friend and successor as State Attorney Edna Arbel, even though Arbel was charged with a multitude of ethical violations that, if proven, would have prevented her from being appointed dog-catcher.

Unfortunately, Barak's substantive objections to the Gavison appointment are equally risible. His chief objection is that Gavison has "an agenda." An internationally recognized expert on constitutional law has some ideas on the proper role of the judiciary vis-à-vis the elected branches of government. Imagine that.

A constitutional law professor who had never thought or written on the Court's proper jurisdiction would be more properly disqualified as uniquely lacking in intellectual curiosity.

If merely having "an agenda" disqualifies one from serving on the Israeli Supreme Court, then no law professor – and certainly not one who specializes in areas related to the Court's primary caseload – could ever be appointed to the Court. And indeed Barak has, at times, objected to the appointment of professors to the Court.

He seems to have forgotten that he himself was one of Israel's leading law professors prior to his appointment as Attorney-General. Moreover, he recently promoted the appointment of Professor Nili Cohen to the Court, and once pushed through the appointment of his good friend and former Hebrew University Law School colleague Yitzchak Englard.

But Barak has trapped himself in an even more fundamental contradiction. No figure in the Israeli legal firmament has a more fully developed vision of the law and the Supreme Court's role than he. As he described that vision in a 1992 article, "In my eyes the world is filled with law . . . . There are no areas in life which are outside the law."

It is impossible to believe that a man of Barak's towering intellect was only struck by his vision of a "world filled by law" upon his elevation to the Supreme Court. We are talking here about an entire worldview.

Under the slogan "everything is justiciable," Barak has made the Israeli Supreme Court the final arbiter of the law in almost every area of life. He has gone so far as to say that the Supreme Court even has authority to review troop deployments in time of war. To ensure that the Supreme Court has the last word on every subject from army promotions to the route of the security fence, the Court has done away with the traditional legal doctrines employed by high courts to avoid encroaching on the imperatives of the legislative and executive branches – e.g., the doctrine of standing, the political question doctrine.

(Justice Mishel Cheshin completely missed the point when he argued at a legal conference last week that the Court cannot be blamed for deciding the most crucial normative issues facing Israeli society since it only decides the petitions that are brought before it. The Court has encouraged petitions on every imaginable subject, brought by those with no concrete, personal interest, by wreaking havoc with traditional doctrines of standing and justiciability.)

Thus the objection to Gavison cannot be that she has an agenda, but rather that she has the wrong agenda - i.e., one diametrically opposed to Barak's. Gavison has been the most prominent critic of the judicial activism of the Barak Court, charging that the Israeli Supreme Court makes the major normative judgments for society to a degree unparalleled by any other Supreme Court in the world, despite the absence of a written constitution. Barak expressly does not want her position represented on the Israeli Supreme Court.

The issues of the Court's judicial activism and the method of judicial selection are closely entwined. To the extent that the Court is rendering value judgments, not technical legal decisions in torts and contracts, it is crucial that a wide variety of viewpoints be represented. And yet that is precisely what the current selection process forecloses.

No one has been sharper in pointing this out that Gavison herself. She has been an outspoken critic of the inordinate influence wielded by the Court President and his two fellow justices over the choice of their colleagues and successors. The process has resulted, in her opinion, in a "kind of closed sect, which is too uniform and which effectively perpetuates itself."

The irony is that Gavison and her opposing "agenda" are likely to fall victim to the current selection process.

But open opposition to the Gavison appointment has cost Barak dearly. Not only has a proud man been reduced to making a fool of himself, but he has by his own words proven right critics who claim that he seeks to impose a uniform viewpoint on the entire legal system. What desperation has driven him to openly oppose the Gavison nomination given that she would be at most one of 14 justices?

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.