Ruthie's agenda

"She lacks minimal judicial disposition. It's not like what people say about [Justice] Mishael Cheshin, who also has a stormy personality. Misha is a warm, cordial, embracing person. With her, though, you encounter a kind of innate asocial character. There is simply no chance that she will have the patience to sit and listen to arguments of attorneys, who often talk nonsense and take up time - but that is part of a judge's work."

The question is whether Ruth Gavison, who is Justice Minister Tzipi Livni's candidate for membership on the Supreme Court, has a temperament that will enable her to sit on the highest court in the land. "The Supreme Court, like the constitutional courts, is actually a place where the judicial temperament is manifested least," says one academic. "It is not like the lowest court, where one has to listen to witnesses and cross-examinations. But she doesn't have a suitable judge's temperament even for the Supreme Court."

Even Justice Aharon Barak, the president of the Supreme Court, referred to Gavison's temperament in his famous "Ruthie's agenda" speech. "If she had not elaborated her positions, I would agree to her appointment," he said, "though of course subject to certain checks such as a judge's temperament and the like."

Barak, Livni and Gavison refused to be interviewed for this article. However, Avraham Carmi, who was the internal comptroller of the Association for Civil Rights in Israel (ACRI) when Gavison chaired the advocacy group, and now opposes her appointment to the Supreme Court, was eager to talk. "I think she is a very problematic person, to put it mildly" he says. "She is `having an affair' with all kinds of right-wing sectors. It is no coincidence that Gavison came out strongly in favor of the innocent lamb Aryeh Deri. It wasn't his acts of fraud that bothered her, but only `the feeling that an element of persecution is present in the system.'"

Carmi, though admitting that he suffered because of Gavison's temperament, is more concerned about her agenda - the same agenda that perturbs Justice Barak. It is difficult to imagine what the public and judicial arena would have looked like during the past 20 years if the High Court of Justice had operated according to the approach espoused by Gavison, who advocates diminished judicial activism. Here is a partial list of judgments that would not have been handed down and without which Israel would be a different country: The Deri-Pinhasi judgment, holding that a cabinet minister who has been indicted cannot continue to serve in the government; the judgments concerning the yeshiva students; the criteria for bringing prime ministers and cabinet ministers to trial, in the wake of the judicial hearing in the Bar-On case; and the judgment obligating an investigation of the behavior of the Shin Bet security service in the Bus 300 affair.

The speech

Three weeks ago, Justice Barak arrived at a meeting of the Forum for Law and Society in Neveh Ilan, outside Jerusalem, with a prepared speech based on a chapter from his book, "A Judge in a Democratic Society." The journalists who had perused the text in advance yawned. We'll never get a headline out of this, they thought. It didn't occur to any of them to ask him about the Ruth Gavison affair, as it was clear to all of them that there was no chance he would reply. But then one of the reporters decided to try his luck anyway. Barak's reply sent shockwaves through the entire judicial system.

Never before had a serving president of the Supreme Court spoken publicly in this way about the candidacy of a colleague for the Supreme Court. What came to be known as the "Ruthie's agenda" speech propelled the ideological and personal war between Barak and Gavison to new heights. If Gavison is elected to the Supreme Court, how will Barak be able to sit with her on the same panel, maintain a genuine dialogue with her or assume a harmonious facade when the dirty laundry is hanging out for all to see?

"Ruth is a good friend of mine," Barak said. "If I were to agree to her appointment, people would end up saying it's a buddy system. Since the establishment of the Supreme Court we have never asked candidates about their attitudes toward the function of the court. These are things a justice learns from the inside and formulates for himself in the course of his activity. But in Ruthie's case that [tradition] has been broken. Ruth is coming to the Supreme Court with an agenda, and that coerces me, unwillingly, to take a stand against her agenda, and her agenda is not good for the Supreme Court. Ruthie's agenda is contrary to what the Supreme Court should do. I am not saying she is not a good candidate, but at this time her conception is not proper for the Supreme Court."

What is justiciable?

What did Barak mean? What is "Ruthie's agenda"? The major dispute between her and Barak is over judicial activism. The view that "everything is justiciable" has become the trademark of the Supreme Court in the Barak era and the ideological banner of his presidency. When Gavison was asked by Ari Shavit in an interview for Haaretz Magazine in November 1999 whether she shares Barak's view that everything is justiciable, she replied, "Definitely not. Unequivocally: not everything is justiciable." In the same interview she emphasized that it is not the task of the Supreme Court to be "the supreme moral arbiter of society" and that "as a supreme moral authority, it is far from clear that the court is better than [Shas spiritual leader Rabbi] Ovadia Yosef ... There are many people in this country for whom Ovadia Yosef is the supreme moral authority and for whom halakha [Jewish religious law] is the worthy supra-legal authority. The court should not ignore them. The court should not compete with Rabbi Ovadia Yosef for their hearts."

Justice Minister Tzipi Livni, who is sponsoring Gavison's candidacy, likes Gavison's declared opposition to what she perceives as the elitism of the Supreme Court under Barak's leadership. She also very much likes her attitude on the question of the Jewish-democratic state, with the emphasis on a Jewish state. And she especially cottons to the charter that Gavison drew up with Rabbi Yaakov Meidan, from the West Bank settlement of Alon Shvut. The Gavison-Meidan charter, which was made public toward the end of 2000, purported to systematize secular-religious relations in Israel. The charter included a few far-reaching concessions by the secular side, such as a total ban on commerce on Shabbat - in kibbutzim, too - and left in place the criteria for the Orthodox definition of "who is a Jew" under the Law of Return. Livni also liked what she heard from Gavison in the discussions of a public council, at about the same time, which drew up a draft of a "constitution by agreement" on behalf of the Israel Democracy Institute.

"I don't want to block the Supreme Court from having its say on the issues of moral principle," Livni said last Thursday at a meeting of the Association for Public Law in Caesarea, "but precisely because the Supreme Court decides the constitution in practice, I want there to be a discussion among the justices on these issues, at the end of which a clarion call will issue from the court, without the nation saying that this call represents only a small group of people who all think alike."

According to both Gavison and Livni, the Supreme Court should be more modest, believe that there is a limit to judiciability, show much greater respect and attribute far more autonomy to the elected political authorities, place a greater emphasis on the country's Jewish-traditional character, and become more relevant to large sectors that are now alienated from the court. Gavison has explained that a change along these lines is meant to protect the Supreme Court against the loss of public trust, though her opponents are convinced that her whole intention is simply to emasculate the court.

It may be that there are other elements in Gavison's worldview that bother Barak and that, from his point of view, are the components of her agenda. For example, she was harshly critical of the High Court of Justice ruling that Yitzhak Rabin, then the prime minister, was obliged to fire the interior minister, Aryeh Deri, in the wake of the decision by the state prosecution to indict him. She has criticized the method by which justices are appointed, which in her opinion gives the serving justices total control over the process.

"It gives those who head the system too much power," she told Shavit years before the present battle over her possible appointment to the Supreme Court. She was displeased with the judgment concerning the right of the Ka'adan family, who are Israeli Arabs, to build a home in the community of Katzir, arguing that the authorities have the right to establish all-Jewish communities, just as the right exists to establish all-Arab communities.

She was critical of the intervention of the High Court of Justice in the realm of party-political agreements and in the operation of the political world in general. And of course she lambasted the "constitutional revolution" under the aegis of which the High Court of Justice ruled that under the Basic Laws, it has the authority to annul laws passed by the Knesset. "The current court sometimes seems to me a bit arrogant," Gavison told Shavit. "Its method sometimes recalls the method of the philosopher-king, who informs the citizens from on high what their values are supposed to be."

When Gavison was president of ACRI, from 1996 to 1999, she fomented a public furor by seeming to say she was in favor of the use of torture by the Shin Bet. "That was far from accurate - the headline did her an injustice," recalls a veteran jurist who served in ACRI. "But that is perhaps where the seeds were sown for the change she underwent. I was absolutely her disciple in matters of human rights, but today I have a very hard time with her opinions."

There is no chance that we will see an open and substantive debate between Barak and Gavison anytime soon. Since dropping his "Ruthie's agenda" bombshell, Barak has not referred to the subject in public. Last week, for example, he canceled his participation in the meeting of the Association for Public Law in Caesarea. At first there were rumors that Barak had announced at the beginning of the week that he would be sick at its end, but in the event retired Supreme Court justice Yitzhak Zamir read out a brief, clear message from Barak to the meeting: "This is an election period, a tempestuous time, and therefore the prudent shall keep silent in that time." Gavison, too, decided to skip the meeting, even before Barak canceled. She did not want "her friend" to embrace her in a false show of supposedly correct relations. There is bad blood between these two.

Gavison has never heard from Livni as to why she decided to support her candidacy for the Supreme Court. She remembers meeting Livni during the "constitution by agreement" discussions, but has no recollection of any meaningful conversation with the justice minister. On a previous occasion, Gavison submitted a form with her candidacy to become a judge. That was before the appointment of four justices to the Supreme Court in May 2004 (Esther Hayut, Salim Jubran, Edna Arbel and Elyakim Rubinstein). The deal forged at that time between Barak and Yosef Lapid, then justice minister, meant that Gavison and 10 other candidates did not stand a chance. After that episode, Gavison abandoned the idea of joining the court and devoted herself to her academic work. Then Livni became justice minister, and she was suddenly once more a candidate.

The timing

Livni could not have chosen a worse time to promote her controversial candidate. Even though the Supreme Court has three unfilled slots and is buckling under the pressure of work, the justice minister delayed for 11 months convening the committee that elects judges because she was unable to muster a majority to support Gavison's appointment. Now, on the eve of the election campaign, she has decided to convene the committee in the hope that this time she will succeed, due to the expected changes in the committee's composition.

The committee to elect judges consists of nine members: three Supreme Court justices, headed by Barak, two representatives of the Bar Association, two MKs and two cabinet ministers. Until recently, Barak commanded a bloc of votes to block Gavison's election. In addition to his two fellow justices, he had the support of the two members of the Bar Association and of Labor MK Avraham Shochat. However, Shochat may be retiring from the Knesset and the committee and the Bar Association representatives are up for re-election before the committee convenes. Thus, for the first time in the history of the Supreme Court, Livni may be able to muster a majority, however thin, that will force an appointment on the president of the Supreme Court. The division among the MKs and ministers is clear: those on the right back Gavison, those on the left are against her - a rather odd stance given the fact that the candidate is a past president of ACRI.

In the light of these developments, a new tune has begun to be heard from the direction of the Supreme Court. If until now the justices complained about Livni's delaying tactics, some are now saying that the committee must not be convened in an election period. Dalia Dorner, a retired justice, went public: "Convening the committee at this time will be unlawful, it is illegal," she said. "A procedure like this definitely goes beyond the bounds of what is reasonable. The justice minister will do well if she abandons her intention to convene the committee to elect judges at this time."

Although she was asked about the subject, Livni was unable to come up with a concrete explanation of why she refrained from convening the committee for 11 months - since she became justice minister - in order to choose new justices. "Part of the criticism against me on this subject was justified," she admitted last week. Her stated reason - that she was busy "with this small matter of the disengagement" - did not convince her interlocutors. If she had time to meet with dozens of candidates for the Magistrate's and District Courts, she could have also made time in her crowded schedule for the Supreme Court appointments.

Half a year ago Livni vowed that she had no intention of waiting for the election of the Bar Association representatives to the committee, which is slated for the beginning of this month. Yet miraculously, without intending to, it turned out that she waited. In the course of nearly a year she earned a great deal of credit from the judicial elite, who have pronounced her an excellent justice minister. But now her adamancy about convening the committee and getting Gavison appointed is liable to tarnish her entire term of office.

Livni emphasizes that she decided to convene the committee in January before the decision about early elections, and in any event she is heading into the unknown: she has no idea what will happen in the vote.

The backing

The threat that a petition may be filed against Livni in the High Court of Justice revealed a previously concealed rift between the Supreme Court and the ranking levels of the Justice Ministry. Livni has the backing of Attorney General Menachem Mazuz and of the director of the courts, Judge Boaz Okon.

Officials in the Justice Ministry say there is nothing wrong with appointing Supreme Court justices during an election period. They are scornful of the way the justices have reversed their position about the convening of the committee: a moment ago they were complaining that it is "impossible to continue" with an understaffed court, and now they are suddenly saying there is no reason to hurry. What is sad, says a very senior source in the Justice Ministry, is that if Livni and Barak were to reach an understanding on the appointment of three agreed candidates, the justices would immediately issue an opinion that there is no problem about convening the committee. And what would Barak say if it were argued that the committee cannot be convened three months before his own mandatory retirement at the age of 70, because he "has an agenda" regarding the candidates and the committee should therefore not be convened until he leaves? In any event, sources in the ministry add, if the High Court of Justice decides to intervene in the convening of the committee, it will be the High Court itself that will suffer the greatest damage.

Incidentally, potential petitioners of the High Court will be pleased to know that Mazuz, who is expected to give judicial backing to Livni's decision to convene the committee, will soon celebrate the second anniversary of his appointment as attorney general. One of the members of the Bach Commission, which examined the qualifications of the candidates for attorney general, was Prof. Ruth Gavison. In fact, it was Gavison who brought about the disqualification of Yoram Turbovich, the candidate of the then justice minister, Yosef Lapid, on the grounds that he did not have 10 years of professional experience in law - thus paving the way for Mazuz's confirmation. This may constitute a conflict of interest for Mazuz and all his subordinates in regard to defending Livni's intention to convene the committee in order to elect Gavison.

The fact that courts director Boaz Okon supports Livni, and consequently also Gavison, will come as very interesting news for Justice Barak. When Okon was the registrar of the Supreme Court he was considered Barak's right-hand man. Shortly after Barak failed in his attempt to get Prof. Nili Cohen, from the Faculty of Law at Tel Aviv University and Okon's close friend, appointed to the Supreme Court, the ambitious registrar was promoted, with Barak's blessing, to director of the courts. That was a year ago. Since then, it turns out, Okon has found an attentive ear in the justice minister and the professional relations between them have become closer. Now Barak finds his protege in the other camp.

The rivalry

Ruth Gavison and Aharon Barak were not always bitter rivals. Gavison was born 60 years ago in Jerusalem. The family later moved to Haifa, where Gavison spent her childhood. "I belong to a family that grew up in this country for many generations alongside Arabs and members of other nations," she wrote in her book, "Israel: A Jewish and Democratic State" (1999, Hebrew). "My maternal grandfather and uncle were rabbis and the main language spoken in their homes was Ladino. My father's family was traditional and had a deep commitment to Hebrew, which was accompanied in many members of my family, including my father, by a good knowledge of Arabic. The religious precepts were not observed in my parents' house, and all that was passed down were traditions and melodies, ceremonies and prayers, pleasantries and holidays, cooking and aromas."

Her parents, she says, grew up in a multicultural society and were fluent in many languages. Her father studied in London, her mother vacationed in Lebanon and Egypt. The language spoken in her parents' home was Hebrew. She studied law at the Hebrew University of Jerusalem and acquired a reputation as a young prodigy. She took her doctorate in legal philosophy at Oxford. When she returned to Israel, and to the Hebrew University, in 1974, Aharon Barak was the dean of the Faculty of Law. They had met earlier, before she went to England, when Barak established the legal journal Mishpatim, and Gavison and Mordechai Kremnizer (now also a professor in the Hebrew University law faculty) were among the top students he recruited for the publication.

Gavison's friendship with Barak was renewed after her return as a young scholar, not yet 30. "She held him in very high regard, she was a brilliant woman and that is also how she was perceived in the faculty," says a veteran attorney who was a student at the time. "Sometimes she would give him a lift home and he would use the opportunity to ask her questions about the philosophy of law - he liked questioning her." They even co-taught a course they invented, called "The legal procedure,” together with Yitzhak Zamir.

Beginning in the late 1970s, Gavison became involved with ACRI, later serving as its chairperson and then its president. Avraham Carmi, the former ACRI controller, does not have sweet memories of her. In the advocacy group's general assembly one year, the annual report he submitted was discussed. The report cited the case of a woman who was paid a salary by ACRI even though she did not work during the period in question. According to a letter that Carmi wrote to Livni recently, Gavison, instead of thanking him for revealing a case of corruption, was among those who assailed him. "What made her blood boil was not the act of corruption itself, in which someone received a salary for doing nothing," he says. "It was how I dared to be critical of a friend of theirs and put it in writing, too." Carmi was fired from ACRI not long afterward.

ACRI was not the only station in Gavison's public activity. She was also a senior fellow of the Israel Democracy Institute; a member of the Zadok Commission, which examined Israel's press laws; and of the Shamgar Commission on the appointment of the attorney general (in the wake of the Bar-On affair). She currently holds the Haim H. Cohn Chair for Human Rights in the Hebrew University Faculty of Law. In the meantime, her legal writing and her public statements have become increasingly identified with the political right and with the religious public. No one is ready to swear that there is no connection between the shift in her approach - "a total turnabout," some call it - and the fact that people close to her have contacts with the extreme right.

"Her views have become more acute in recent years," says a former colleague. "She has become more extreme in regard to Arabs, for example. There is a problem with her judgment and with her temperament - which is not that of a judge - which justifies the blocking of her appointment. She is causing damage; she has absolutely no understanding of public processes." Another senior colleague agrees: "In the past six-seven years she has been making very strong moves in the national direction, and so she turned herself into a very desirable candidate for the political right."

According to a senior lecturer in law, "She underwent some sort of dramatic change which also included an upheaval in her personal life. The astonishing thing is that she took her reputation as a fighter for human rights and harnessed it to interests and groups in Israeli society that are the greatest opponents of human rights. I can only assume that part of her thesis stems from psychological motives that cause her to be different and go against the current."

The upshot was that even Barak, with all his restraint, had enough. In a public gathering about the constitutional revolution in 1998, in which Gavison and Barak were both on the stage, he turned to her and asked, "You are on the Supreme Court and the investment consultants come to you. What is your judgment in the case? It is not enough to say that it should have been done differently and that a discussion should have been held about it. What is your ruling? Read Gavison from beginning to end - she has no answer to that question." And at an event of the Israel Bar Association, in 2000, when she received the Bar Association's Human Rights Award, Barak, who congratulated her, remarked, "I hope Ruthie that the award will light your way."

The paradox

The paradox of Ruth Gavison is that she is an expert on the theory of law and in constitutional law but has no experience in property law, contracts, torts, family law, criminal law and even administrative law. Summing up her "agenda," it can be said that she is in favor of narrowing the High Court of Justice's judicial review of the other governmental authorities and would like to see the court revert to its classic role as a tool to resolve conflicts. In other words, she wants the court to place the emphasis precisely in those spheres in which she has no practical experience. Then why does she want to become a justice?

It is the superficiality that kills that argument, according to Gavison. True, she has a defined outlook on the question of the "right of standing" in the High Court of Justice. Part of Barak's revolution involved the broadening of the "right of standing" to the point where it is now possible to petition against governmental authorities even without having been directly harmed by their wrongdoing. Gavison prefers the style of the old court, which demanded that a petitioner cross several hurdles - including the "right of standing" - before examining his petition. In her opinion, in a case where no specific person or body has been harmed, the court should rarely intervene, and this also holds for cases in which it is "more correct" for the court to leave the matter for the governmental authority concerned to handle instead of intervening in its decisions, even if they are wrong. When it comes to her inexperience in many spheres of practical law, she thinks that every jurist who reaches the Supreme Court has to supplement his knowledge in areas he has not previously dealt with.

In the book "Judicial Activism: For and Against," (in Hebrew) which she co-authored with Prof. Kremnizer, she calls on the High Court of Justice "to return to the old concept and narrow the boundaries of the law. There are matters to which the public judgment should be applied, not public law. I recommend also that all the judges go back to making a distinction between handing down judgments and writing scholarly articles. I recommend strengthening the tendencies of self-restraint and increasing the rejection of petitions outright." In another book, "The Constitutional Revolution: An Interim Summation," (also in Hebrew) she is even more outspoken: "Judging is indeed different from reforming the world," she writes, "Anyone who wants to be a world reformer should move to the realm that is in charge of that."

"The paradox argument is a clever argument by her opponents, but not a fair one," says Dr. Hillel Sommer from the School of Law at the Interdisciplinary Center in Herzliya. "Boiled down, the argument is that a justice who wants to abridge the powers of the Supreme Court has no place in that body. There is a logical flaw in this argument, because what it means is that we will always only elect justices who think that the powers of the court should be expanded, and we will never be able to choose a justice who thinks they should be diminished - there is no logic in that."

"If all you want is practical experience," notes Dr. Orit Kamir, from the Hebrew University Law Faculty, who is a friend of Gavison, "then there really is no place for taking people from academia to the Supreme Court. But it is difficult to justify that attitude, because so far quite a few professors have been appointed to the Supreme Court, including Barak himself, and when he got there he did not have a great deal of practical experience in most areas of law. Each of the arguments that is put forward against her has a logic of its own, but it is strange that they are adduced only against her and that they suddenly look very critical. As a philosopher of law, she has a broad view of the principles and fundamentals of law, and that is more important than being familiar with a particular sphere in detail, which she can do thanks to the broad and deep foundation she possesses."

In fact, Livni herself, if one can believe her confidants, is not all that enthusiastic about Gavison's approach on the subject of activism. Her intention in supporting Gavison is not for the Supreme Court to be less activist. Nevertheless, her backing of Gavison is not influenced by this, in part because Livni views this issue as secondary in importance to the question of the "Jewish and democratic state" issue and in part because irrespective of whether Livni, too, is in favor of reducing judicial review, she is ostensibly interested in greater ideological diversity on the Supreme Court. She disagrees with Gavison on certain issues, but still holds her in high regard as a preeminent jurist. Gavison, if she is appointed, will not join the group of pale yes-people, who automatically affiliate themselves with the opinion of their fellow justices on the panel.