His opposition to a Court candidate he admits is qualified reveals it is he, and not Ruth Gavison, who is ideologically driven.
By DAVID HAZONY
Ruth Gavison is, in many crucial ways, Aharon Barak's worst nightmare. Arguably Israel's most celebrated legal scholar, a lifelong activist for human and civil rights, a longtime proponent of peace negotiations with Israel's Arab neighbors, she is also the most eloquent and outspoken critic of the extreme judicial activism that the chief justice has made the hallmark of his tenure.
And now she is the government's leading candidate for a spot on the bench.
Judicial selection is an odd thing in Israel. Very few democratic countries allow the judges on the highest court any say in picking their own successors; it is perceived as a violation of the separation of powers, and of the people's fundamental right to choose who will rule over them in a relatively direct fashion.
In Israel, however, the sitting justices not only have a say, but carry the decisive bloc of three votes in the nine-person Judicial Selection Committee. Among those three, the chief justice - who not only sets the agenda of the court but also decides which justices will hear what cases - carries overwhelming authority. As a result, the Israeli Supreme Court has become insular and self-perpetuating, steadily advancing a particular ideology - universalist, deferential to international law, uninterested in Jewish legal tradition - and passing it on from one generation to the next.
But now Justice Minister Tzipi Livni, as representative of the elected government and chair of the selections committee, has decided to put a stop to this, and is refusing to convene the selections committee - leaving three slots on the High Court unfilled - as long as Barak maintains his opposition to Gavison's appointment.
THIS PUTS Barak in a difficult spot. In the past, he was able to justify the court's disregard for values dear to many Israelis - who favor judicial restraint and the state's Jewish character to a far greater degree than his court has reflected - by invoking the rule of law and the preservation of democratic rule. Regarding some critics and criticisms, he may have a point. But in the case of the Gavison appointment, such accusations are transparently false. His opposition to her appointment looks, on its face, like an undisguised attempt to impose ideological uniformity on the court, minimizing debate even within the camp that strongly champions democratic values.
On November 13, after keeping a dignified silence on the matter, Barak finally went public with his views - and the results were not pretty. In comments published the next day, he offered his reasons for opposing Gavison's appointment:
"She is a candidate who comes to the court with an agenda - and that in and of itself is a bad thing. That's not our way... Her agenda is bad for the Supreme Court. She is definitely qualified to serve on the Supreme Court, but that's not the questionâ€¦. If Ruth hadn't publicized her views about the Supreme Court's role in a democratic society, I wouldn't have asked her what she thought about it," adding that in such a case he would not have opposed her appointment.
Barak's defense boils down to three central arguments: (i) He opposes a candidate who enters the court with a preexisting "agenda" with regard to the court's role, regardless of its contents; (ii) he opposes Gavison's particular agenda, feeling that it is "bad for the Supreme Court," despite conceding her qualifications to serve on it; and (iii) he opposes her only because she made her views public.
Leaving aside the apparent contradictions among these three propositions, each of them, considered on its own, is cause for profound concern. In the first line of reasoning, Barak indulges in the myth that some judges lack any "agenda" as to the proper role of the court, but rather enjoy some sort of austere objectivity or disinterest - and that only these should be allowed on the court.
This is obviously false: All judges worthy of their position, and Barak most of all, have an "agenda" or worldview which they bring to the court, especially on the subject of the court's role in democratic society.
In the second, Barak is more frank, yet transparently abusive of his authority. It is precisely the desire to allow for a multiplicity of views that keeps judges out of the judicial selection process in most democratic countries. Moreover, it is the claim that judicial involvement is needed to preserve professionalism, not ideological uniformity, which has been used in Israel for years to justify the country's anomalous judicial selection process.
By declaring his opposition solely on ideological grounds, while conceding Gavison's qualifications as a justice, Barak raises profound questions of democratic process, and makes us wonder whether similar manipulation on ideological grounds has not become routine in our judicial selection system.
As for the third argument, what can one say? Israel's Supreme Court president has made explicit what many of his worst adversaries have long accused him of: Creating a climate of fear throughout the judiciary establishment by linking professional advancement with public submission to his ideology.
This is inappropriate in any democratic society which seeks to advance itself through open debate and a safe environment for views that contradict established authority. It is disturbing coming from Israel's top judge - who has rightfully taken pride in the court's role in preserving free expression - and powerfully revealing about the problems inherent in the way Supreme Court justices are currently chosen.
This year, the Knesset's Committee on Law, Constitution and Justice will be putting up for consideration a draft constitution for the State of Israel - the most ambitious constitutional effort since the state's founding. This is an opportunity to reestablish Israel's judiciary on firmer democratic grounds, to introduce democratic controls into the selection process, and to enshrine the values of open debate, criticism and respect for national values that are the hallmark of democratic society.
Let us hope that Israel's elected leaders can take the bold steps necessary to rein in its unelected ones.
The writer is editor-in-chief of Azure (www.azure.org.il), the journal of the Shalem Center.