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Dorit Beinisch was approved last Thursday as the new Supreme Court president and will be sworn in this coming Thursday, the day her predecessor Aharon Barak steps down.
Beinisch and Barak go back a long way. He was her law professor at the Hebrew University during the 1960s and at one point even talked her out of quitting her studies, as she was then considering doing.
Barak had been her mentor ever since. Without Barak, Beinisch would have never been appointed to the Supreme Court. The first time her appointment was mooted - in 1993 - it was foiled by then Chief Justice Meir Shamgar and was likewise vehemently opposed by then-premier Yitzhak Rabin, whom Beinisch incensed on more than one occasion as state prosecutor, most conspicuously when Rabin exiled 415 Hamas activists to Lebanon in 1993.
When Barak succeeded Shamgar he vowed to appoint Beinisch to the Supreme Court, which he did in 1995. He not only handpicked her but he knew that by virtue of the seniority tradition, she would succeed him as chief justice. Custom stipulates that the longest-serving justice succeeds the chief justice upon his retirement at age 70. Beinisch, 64, is now expected to hold her post for the coming six years.
During her stint on the court, her positions nearly always mirrored Barak's line. Among the very few exceptions, she opposed parole for Yoram Shkolnik, convicted of murdering a captured terrorist, and unlike Barak she opposed allowing Baruch Marzel to run for the 16th Knesset. With Barak she occupied the minority position on the court in opposition to regulations denying citizenship to Palestinians via marriage to Israelis.
She was also more obstructionist than Barak about admitting new members into the court. Like him, she opposed Ruth Gavison, but, unlike Barak, also vetoed another equally-esteemed law professor, Nili Cohen. Conversely, Beinisch was the most enthusiastic advocate for appointing her friend and successor as state-prosecutor Edna Arbel to the court.
Barak was thus far the most controversial Supreme Court president Israel has known, particularly in his penchant for judicial activism. Judging by her record, Beinisch holds to a similar mind-set. Her challenge, as court president, will be to follow her judicial convictions while simultaneously widening the degree of confidence with which the court is regarded by the people it serves.
The role Beinisch will undertake in a few days is one of the most powerful in the state and Barak made it more powerful than ever. It is, it should be needless to say, a role which demands a person above all ethical reproach, which Barak indeed has always been. The court president not only represents legality on a host of ceremonial occasions, but also in daily rulings, as well as in personal conduct.
Beinisch inherits a Supreme Court composed of judges whose personal integrity is beyond reproach - an accomplishment that, given the state of the upper echelons of our political system, certainly cannot be taken for granted. Yet the court also has a reputation of being aloof, overly activist and, to some minds, skewed toward one side of the political spectrum. A recent opinion poll showed that 64% of the public suspect political motivations behind Supreme Court appointments and that only 33% consider Beinisch deserving of her promotion to chief justice.
We hope that Beinisch proves the skeptics wrong and rises to the challenges before her. Her success - and it will be a success for democracy - will depend on her demonstrating to the citizenry that under her leadership the court is not political, not imperialistic in its ambitions, that it can steer away from ideological choices which are not its to make, streamline legal processes and improve attitudes towards litigants.
The court can and must play a critical role in restoring trust in our democratic institutions.
Paradoxically, however, if the court tries to usurp the roles of the elected officials in the executive and legislative branches of government - regardless of how tarnished those branches are - it will only exacerbate the very mistrust it is attempting to ameliorate. However, by striving to be representative, and by showing the humility and restraint appropriate to a non-elected body, the court can help restore confidence in our entire democratic system.
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