A cut above the rest
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During an address a month ago to the Forum for Law and Society, the president of the Supreme Court, Justice Aharon Barak, said he was opposed to the appointment of Prof. Ruth Gavison to the Supreme Court bench because she had an "agenda." This rare statement by Barak brought to the surface the dilemmas facing the Judicial Appointments Committee, and opened an unnecessary and harmful Pandora's box.
The Judicial Appointments Committee is not a perfect entity, and certainly not an objective one; but it is the most respectable and balanced selection body one can hope for. The special composition of the committee, which includes politicians, judges and lawyers, ensures a professional approach, but one that also considers the diversity of opinions among the public.
Prof. Gavison was the candidate of Justice Minister Tzipi Livni. Barak believed the appointment was not right. Differences of opinion are legitimate, but when Barak was asked to explain his opposition, he got tangled up in reasons that require review.
Barak explained of late that the word "agenda" was misused, and that it would have been more correct to define Gavison as a "revolutionary." In Barak's opinion, a professor who is a candidate for the Supreme Court bench may formulate perceptions, write articles and books, and lecture at conferences; but the moment he or she starts to write for newspapers, give interviews, work in the framework of public associations or conduct negotiations on value-oriented issues and matters of a political nature, he or she goes from being a neutral academic to a revolutionary.
Because Prof. Gavison did not shut herself off in the academic ivory tower and did not work only on behalf of her personal advancement, but also headed the Association for Civil Rights in
In keeping with this stringent approach, Barak would have also opposed the appointment of former Supreme Court justice Haim Cohen - who, following his retirement, was chosen as president of ACRI and fought to secure a retrial for Amos Baranes - had Cohen done so prior to his appointment as a justice.
Barak's statements imply that anyone with aspirations for an appointment to the Supreme Court bench at some time in the future must, already at a young age, refrain completely from any significant public activity. He determines, in fact, that only judges and civil servants can be candidates for the Supreme Court bench because of the silence that their positions dictate.
Regardless of the question whether Prof. Gavison is a worthy appointment or not, Barak's position is unacceptable. There is no need to be dragged into the political appointment of justices according to the American model, in order to agree that a Supreme Court justice should be someone who is not indifferent to the fate of people and their struggles, and even expresses his worldview in public. Barak's demand that Prof. Gavison and Prof. Mordechai Kremnitzer sit out a "cooling off" period is suitable for another era, and not for a transparent and dynamic society in which the media carries reports on everything that occurs in it.
The very best should be selected for the Supreme Court, individuals who are a cut above the rest in their fields of expertise, and not necessarily the silent ones, the passive ones, the inconspicuous ones - out of concern that the Supreme Court could become an average and gray institution.