Analysis: Supreme Court appointments are first crucial test of Friedmann-Beinisch ties

Of all potential flashpoints in the tense relations between Friedmann and Beinisch, the question of the Supreme Court appointments is the most potentially explosive.

By DAN IZENBERG
supreme court 298.88 (photo credit: Ariel Jerozolimski [file])
supreme court 298.88
(photo credit: Ariel Jerozolimski [file])
Justice Minister Daniel Friedmann and Supreme Court President Dorit Beinisch reportedly did not discuss the list of candidates to fill the five vacancies on the 15-person court during their two-hour meeting on Tuesday. According to another report, Friedmann will draw up his own list of potential court appointees and then he and Beinisch will try to negotiate an agreement on who the five finalists will be. It will not be easy. Of all the potential flashpoints in the highly tense relations between Friedmann and Beinisch, the question of the Supreme Court appointments is the most potentially explosive one at this early stage in their relations. The reason is simple. The composition of the court will determine what kind of court it will be - the activist and dominant court created by Beinisch's predecessors, Aharon Barak and Meir Shamgar, or the routinely passive and non-interventionist court of their predecessors. Barak's critics say it could also determine whether the court will be an excellent or a mediocre one. It was Barak, first with Shamgar's support and then on his own, who created the court as it is today. He created criteria for examining the administrative decisions of the government and the proceedings - even the legislative acts - of the Knesset. He employed international law and human rights criteria to interfere with the conduct of the army even in the midst of battle. He created the highly controversial constitutional revolution and expanded the right of citizens to petition the High Court of Justice. Beinisch was Barak's disciple and has made it clear that she intends to follow in his footsteps. But during his years in office, Barak and his policies won him many enemies. At first, it was the haredim, the national religious population and secular right-wing nationalists who turned against him. They regarded him as pro-secular and pro-Left. As the years went on, however, he alienated many of his potential friends in the center and the Left. Moderate liberals, including Haim Ramon and Dalia Itzik, and many legal academics charged that Barak had gone too far. Friedmann belongs to this group. He turned against the Barak court, particularly Beinisch, in 2003, during the fight for the nomination of his close friend and colleague, Tel Aviv University Prof. Nili Cohen. When justice minister Tzipi Livni promoted the candidacy of Hebrew University Prof. Ruth Gavison, an outspoken critic of the Supreme Court, Barak would not hear of it. Friedmann wants to make many changes in the court system. For example, he wants to weaken the Supreme Court component in the Judges Selection Committee by appointing two lower court judges in place of two Supreme Court justices in the nine-member committee. He wants to eliminate the tradition of automatically electing the justice with the most seniority on the Supreme Court as its president. He also wants to do away with the court's right to nullify Knesset legislation if it deems the law unconstitutional. Barak wanted more time than he had to inculcate his revolution. For him, Beinisch, with her proven activist, liberal approach and her solid support for his rulings, was the best possible to choice to succeed him. Indeed, from the moment she replaced Barak, Beinisch, in speech after speech, warned of almost certain attempts to turn the clock back to pre-Barak times, when the court was the weakest of the three branches of government. Friedmann is one of those who wants to go back in time, even though it is not certain how far. For the past four years, he has used his column in the Friday edition of Yediot Aharonot as a platform to declare that the court has become too powerful and arrogant. The identity of the five justices-to-be could have a decisive impact on this profoundly ideological debate. As it is, the allegedly Left-leaning, think-alike court in which "one friend brings another" is by no means homogeneous. There are obvious liberals such as Beinisch, Deputy Supreme Court President Eliezer Rivlin, and Justices Ayala Procaccia and Salim Joubin, who essentially support Barak's revolution. There are centrists such as Asher Grunis, Miriam Naor, Esther Hayut and Edna Arbel, who seem to be less under the influence of Barak. And there are the traditionalists, Edmond Levy and Elyakim Rubinstein, who are conservative (even though Levy was described as the most activist justice of all after voting to nullify the government's disengagement law). There is another issue at stake in the determination of the court's composition: the question of the quality of the justices who are to be appointed. The court's critics, including Friedmann, maintain that Barak and Beinisch deliberately created an allegedly mediocre court because they did not want outstanding jurists like Cohen or Gavison. Friedmann charged that Beinisch did not want Cohen because Cohen was a far better jurist and would have overshadowed her. Indeed, Cohen's rejection by Beinisch seems to have been personal rather than ideological. Barak, on the other hand, made no secret of the fact that he opposed Gavison's "agenda." He was afraid Beinisch might not be able to stand up to the brilliant Gavison, who was one his most outspoken critics, and that Gavison would jeopardize his hard-won achievements. The question of which side has more qualified candidates to offer is open to debate. On the other hand, there is little doubt that the outcome of the negotiations between Friedmann and Beinisch will determine the ideology of the Supreme Court for many years to come.