How Dorit Beinisch might secure Aharon Barak's legacy

Ironically, the new Supreme Court president's best path forward may be to act less like her mentor.

dorit beinisch 88 298 (photo credit: Ariel Jerozolimski)
dorit beinisch 88 298
(photo credit: Ariel Jerozolimski)
New President of the Supreme Court Dorit Beinisch quite rightly pointed out, at the farewell ceremony for her predecessor, that there is only one Aharon Barak and that she was not blessed with his gifts. Now she has five and a half years to turn that into an advantage. Beinisch has reached as far as she has thanks to her mentor Barak; he handpicked her for his court almost as soon as he was appointed president, in the clear knowledge that by dint of the seniority system she would eventually succeed him in the top job. Yet there was no certainty that she would get the job. Former justice minister Haim Ramon was an opponent of seniority and was planning to place at least a few obstacles in Beinisch's way. His forced resignation last month, following the attorney-general's decision to press charges against him over an accusation of sexual harassment, made way for replacement Meir Sheetrit, who immediately affirmed Beinisch's appointment. Dark mutterings can already be heard from Ramon's camp as to the real motive behind the decision to push a less than watertight case against him. If he is exonerated and restored to his post, Beinisch will have an implacable foe. But whatever the outcome of the Ramon case, Beinisch already has no shortage of potential enemies. Barak might have been an undisputed legal giant but he was also the most unpopular Supreme Court president in history. He alienated not only the Orthodox communities with controversial rulings on state and religion, but also the right-wing and defense establishment with decisions seen as straitjacketing the military and security forces and giving succor to Palestinians. Beinisch was his resolute partner in many of these rulings and even before that, in two and a half decades as state attorney, time and again she took on the government, the IDF and the Shin Bet (Israel's Security Agency). As state attorney in 1993, she refused to defend the government in the Supreme Court over the mass expulsion of Hamas members to Lebanon. All the expectations are that Beinisch will continue Barak's activist policy of intervening in matters that many believe are the proper preserve of the politicians and generals. There are still landmark rulings to be made on delicate issues such as conversion, army service of yeshiva students and the security barrier. Beinisch could easily be launched on a collision course. But despite sharing Barak's beliefs, she doesn't enjoy anything close to the prestige and respect he commanded, from friends and critics alike. When Barak caused one of his periodical storms, he was assured of the automatic support of most of the legal and political establishment and the media. He easily saw off threats, quietly lobbying politicians and journalists, whenever a piece of legislation designed to limit the court's powers was presented. Beinisch will have very little backing when she embarks on her next crusade; there is little love lost between her and most of the politicians who see her as encroaching on their authority, and she is far from universally popular even within the legal world. She earned the enmity of the Tel Aviv University Law School clique last year when she opposed the appointment of Prof. Nili Cohen to the Supreme Court, and is accused of using underhand tactics. Many are waiting for her to fall. And things could get even worse for Beinisch. Opinion polls are of course notoriously fickle but if elections were to be held today, a coalition consisting of Likud, Israel Beiteinu, the National Union-National Religious Party and the haredi parties would have a handy majority. None of these parties are fans of an activist, interventionist Supreme Court, and many of their leaders are ardent supporters of legal reform, bolstering the supremacy of the elected parliament and government over the judiciary. Beinisch's legacy might be a drastically weakened court. Yet she's an experienced operator and probably realizes that she may have to chart a careful course through what may soon be stormy waters. A possible indication of her future direction was her willingness this year to act as chairperson of the Central Elections Commission and the conciliatory fashion in which she carried out her duties there. Whether that was a just a tactic to smooth her ascent to the top or a more long-range policy remains to be seen. Her next hurdle is the appointment of four new justices to the court. Technically Beinisch has only one vote on the appointments committee but the court president usually gets his, or her, way. Whether she puts her weight behind activist justices in Barak's mold, or prefers candidates from outside, will be a key decision with implications for her entire term. Whether she rushes to deliver a ruling on the conversion controversy or employs delaying tactics will also be a way to gauge how gung-ho she is. Ultimately, it might turn out that the best way for Beinisch to preserve Barak's legacy is to be less like him.