A question of balance on the court

Gavison opposes the Barak court's assertion that all issues are justiciable.

The president of the High Court of Justice, Aharon Barak, last week went public to express his fear that Hebrew University law professor Ruth Gavison would be appointed to one of the current vacancies on the Supreme Court. For months now there has been a stand-off between Barak and Justice Minister Tzipi Livni, who is the chairman of the judges selection committee, over Gavison's appointment, with Livni supporting Gavison as enthusiastically as Barak opposes her. The result has been the prolongation of multiple vacancies in the court at a time when it is flooded with important cases. Israel's system for selecting judges up to and including the High Court has been a reflection of the desire to distance the selection process as much as possible from the hurly-burly of politics. The result has been the establishment of the nine-member committee which is headed by the (political) minister of justice who, together with an additional cabinet minister and two Knesset members, makes for a ratio of four politicians against five jurists: the president of the High Court and two additional justices and two representatives of the Bar Association. As important as that ratio itself has been the fact that the process has traditionally been carried out in secret. That's led to complaints that the court has been turned into an "old boys' club." Those complaints, coming on a backdrop of right wing-religious attacks on the court, have more recently led to a partial opening-up of the process with the names of prospective candidates being made known before the final vote in the selection committee. Last week Barak went public with the reasons for his adamant opposition to Gavison. After first paying obeisance to the broad consensus concerning her impressive professional qualifications, he explained his opposition by referring to "the agenda" with which she is identified and which she would be bringing with her to the court. Barak is not naive enough to believe and publicly assert that candidates to the High Court, or to the judiciary in general, have no opinions on political questions or public issues. "Agenda" is the code word he has selected to refer to Gavison's oral and published opposition to the judicial activism which has been the hallmark of Barak's tenure as president of the court. Barak's judicial activism has expressed itself in the assertion that all issues are justiciable and thus subject to consideration by the High Court, and in broadening the concept of legal standing before the court to include applicants who have not necessarily been personally affected by decisions of other governmental and legislative bodies. These positions have been adopted by the High Court during Barak's long tenure. He will be leaving the bench upon reaching the mandatory retirement age of 70 in another few months, as will another justice with similar opinions, Mishael Cheshin. Barak is understandably concerned that the principles of judicial activism with which he has been associated so profoundly could be eroded or even overturned by a court from which he will have retired if such proposals are led by charismatic justice such as Gavison. JUSTICE MINISTER Livni is one of the more impressive Likud cabinet ministers, but this is not a question that divides Left from Right in Israel. The 10th anniversary of prime minister Yitzhak Rabin's assassination is a good time to recall his own chafing under the threat of an interventionist court. One of the reasons the suspicious Rabin gave for finally agreeing to the ceding of power in the territories to a Palestinian Authority is that its head, Yasser Arafat, could fight Arab terrorism more effectively than Israel without the hindrance of a High Court on his back. The issue of the degree of judicial activism that is desirable deserves to be addressed and fought out in full public view. I hold with Barak on this issue, especially in an Israel which still does not have a written constitution, in which a significant part of the political community views the judiciary as an enemy and in which political corruption has reached worrying proportions. It would be a shame, however, to oppose the addition of a judicial star such as Gavison to a court from which Barak and Cheshin are missing. She would be only one of 15 justices, and one may assume that the remaining justices would be significant personalities in their own right able to intellectually confront her views. But there is more than one vacancy that needs filling, which makes for a deal between Barak and Livni possible in "balancing" Gavison's appointment with that of her Hebrew University colleague - and a star of similar caliber - professor Mordechai Kremnitzer.