The Supreme Court's Gavison problem

Our highest court is perhaps the only one in the democratic world that effectively chooses itself.

aharon barak 88 298 (photo credit: Ariel Jerozolimski [file])
aharon barak 88 298
(photo credit: Ariel Jerozolimski [file])
To many of us, the Supreme Court is the jewel of our democracy: trusted and respected, and a critical counterbalance to the shallowness, and even corruption, of our unstable political system. We have almost come to depend on the court to sweep down and cut through the Gordian knots of our politics, such as when it found the de facto draft exemption for yeshiva students to be illegal, and ordered the Knesset to devise a different solution. Yet there are two critical problems with the court that threaten to undermine that credibility and our democracy as a whole, both of which have been amply illustrated in recent days: first, that our highest court is perhaps the only one in the democratic world that effectively chooses itself; second and related, that the court is acquiring for itself increasing power among the branches of government. Court President Aharon Barak, who personally symbolizes both what is best about the court and its twin flaws, has lately come out publicly against the Justice Minister's recommended pick for a new justice, Ruth Gavison. Most recently, Barak backtracked from his public objection to Gavison - a prominent constitutional scholar and civil rights activist - on the grounds that she had an "agenda." Now Barak, who always admitted that Gavison was fully qualified for the job, says she should go through a "cooling off" period, since she has been so vocal on the court's role and other controversial issues. We find such a contention to be tendentious. It strains credulity that Barak would object to a candidate whose views he agreed with, even if they had an "agenda" (as Barak himself does) and vocally expressed it (as Barak does too). Who should the public prefer, someone whose views are well known through a distinguished career of scholarship and advocacy, or a "stealth" candidate of the sort that has become de riguer in the US, since "paper trails" have become a political liability? Judges should be chosen for their judgement - namely, their demonstrated ability to think in a balanced, nuanced and unimpeachably honest way about difficult public dilemmas. More particularly, they should have a developed and known view of the role of the law and the court in a democratic society. Barak's real objection to Gavison, it must be surmised, is that she would be the first articulate opponent of his own philosophy of judicial activism, embodied in the idea that "everything is judiciable." Which brings us to yesterday's court decision upholding the government's cuts in welfare benefits. We tend to believe that our welfare system needed reforming, but whether these budget cuts were warranted is besides the point. The groups that appealed to the court argued that the cuts violated the Basic Law on Human Dignity and Freedom. A seven-judge panel, led by Barak, wrote that it was "not convinced" that the cuts "violate human dignity." But the court also recognized a de facto "constitutional right to live in dignity ... that must be applied in the entire public judicial system, and courts are authorized to enforce it." The significant result here is not that the budget cuts stand, but that the court is, not for the first time, treading deeply into the legislature's prerogatives, namely deciding on deeply political issues. If the decision over whether a shekel is spent for a welfare payment or a bullet or a road is not the province of the Knesset, what is? A famous American legal scholar, Charles Black, once wrote of his own court, "The Supreme Court is a body of great power. Once on the court, a Justice wields that power without democratic check. This is as it should be. But is it not wise, before that power is put in his hands for life, that a nominee be screened by the democracy in the fullest possible manner...?" The fact that our court continues to amass power from the elected branches of government only exacerbates the problem of the court choosing itself: both trends undermine democracy. Even if Gavison is ultimately chosen as a justice over Barak's objections - which seems unlikely for now - the structural problem would not have been addressed. Without reform in the process by which judges are chosen, a change that would itself produce a broader range of judicial philosophies, the court's own credibility will erode, which will further threaten a keystone of our democracy.