Difference over law-making in Israel

Ruth Gavison, a law professor at the Hebrew University who is up for one of three vacancies on the court, is controversial first for her apparent shift in politics. In 1994, when president of the Association of Civil Rights in Israel, the lobby won a landmark Supreme Court case granting same-sex partners of company employees the same benefits as opposite-sex ones. Yet in 2003 she published a "covenant" with a right-wing rabbi, Yaacov Medan, that tried to mend the rift between secular and religious Israelis by setting down principles for a modern Jewish state. It included a proposal to institute civil marriages, but for heterosexual couples only. At present, Israeli Jews can be married only by a rabbi, so many have a secular marriage abroad instead. Some of her former civil-rights colleagues accuse Ms Gavison of betrayal.

Yet her politics is overshadowed by her other main belief: that judges should, in any case, leave a lot more to politicians to decide—including what kind of marriage is legal. This don't-legislate-from-the-bench philosophy, reminiscent of Mr Bork's, is much more controversial since it challenges the "everything is justiciable" maxim of the Supreme Court's president, Aharon Barak. Under him, the court has broadened its remit in several areas. Most notably, it began treating Israel's Basic Laws, a sort of partial constitution, as if they were a real constitution, and has used them as a basis for junking other laws. Ms Gavison argues that no other court in the world has simply given itself such powers without a written constitution. She also thinks that since judges are appointed by a panel of nine that includes five jurists, rather than by politicians alone, it is too unaccountable to have the power it claims.

Conservatives often argue for liberal courts to have their wings clipped, and vice versa. Ms Gavison declined to comment on whether her two sets of views are connected. Israeli liberals, though, argue that only such an activist court could have achieved many of Israel's main civil-rights advances (for years its positions on gay issues, for instance, were among the world's most progressive) and curbed some of the most egregious abuses against the Palestinians. Next year it is to rule on whether same-sex marriages performed abroad should be recognised in Israel as opposite-sex ones are, and will probably say yes. That too would go against the Gavison-Medan covenant.

Yet the main reason for the furore is that Mr Barak is due to retire next year. So Ms Gavison, though not up for the court's presidency, would represent the first serious challenge in years to its basic premise. Some judges, says Alon Harel, a fellow law professor, may also feel challenged by the fact that "Ruthie is a brilliant jurist—there is nobody like her today on the court." Even some jurists who disagree with both her politics and her judicial philosophy think she should be on the bench, if only to keep the court on its toes.

Last week the Israeli Bar Association elected its two representatives to the judicial-appointments panel, one of whom opposes Ms Gavison. That seems to tip the balance against her. But the fight is not over. It is unclear whether the panel can meet at all, with a general election in March. If it waits, the politicians on it will change, perhaps shifting the balance again, amid frantic deal-making. Even if Ms Gavison does not get the job, says Mr Harel, the naming of judges in Israel is destined, as in America, to become noisy.