The court in distress
The intensity of the pressure to which the Supreme Court is now being subjected is attested to by the phone calls made by several people associated with the court to Israel Bar Association members on the eve of the vote determining the association's representatives to the judicial selection committee.
Many people were astounded by the direct involvement of senior members of the judiciary in the organization's internal elections. To them it demonstrated the seriousness of the tailspin into which the rule of law in Israel has been plunged. It demonstrated just how far the legal system in Israel has gone awry. But above all it demonstrated that the Supreme Court definitely views the affair of Ruth Gavison as a watershed. Friends of the court sincerely believe that if Gavison, a professor of law at the Hebrew University of Jerusalem, enters the temple of justice, the temple will be desecrated. That it will mean the end of the monumental life enterprise of Supreme Court President Aharon Barak.
The Barak revolution, which has defined and characterized the Supreme Court since the beginning of the 1990s, will terminate in a conservative counterrevolution. The counterrevolution will diminish and shrink the court and make it into a lame judicial organ. Seemingly, the Supreme Court should have greeted the decision against Gavison in the Bar Association with shouts of joy. The moves and maneuvers and lobbying paid off: The danger passed, the counterrevolution was sidetracked, the conceptual purity of the temple of justice was preserved. However, within a few days the court understood that its victory might prove to be pyrrhic. In contrast to its image, it is not cut off from society, not shut away in a high ivory tower. The court listens to what is going on, follows events and reads newspapers.
Thus, when it became apparent that the victory in the Bar Association was becoming a debacle in the media, the court fell into deep distress, which sometimes borders on despair. It is a cumulative distress. It does not begin with Gavison or end with Gavison. Underlying it is the understanding that the Jewish judicial genius is not concentrated in Israel. It is hard to find 10 jurists of stature in the country who are worthy to serve as Supreme Court justices. But what is weighing even more heavily on the court's future is the slackening of the ethos of judgeship in this country. There is a rarity of those who possess the qualifications to be a judge and are ready to assume the way of thought and the way of life of a judge: to look both this way and that, to weigh both that and this, to show restraint. Not to be motivated by a commitment to certain ideas that are espoused by certain sectors.
Every society needs crusaders, the Supreme Court believes. Every society needs revolutionaries to raise the banner for all to see. However, their place is in the executive branch and in the legislative branch, not in the judicial branch. Their place is in the town square, not in the courtroom. The court maintains that by its nature, it cannot sustain judges who raise banners: It wants no part of either revolutionary judges or crusading judges.
Will such a cautious approach not lead to a situation in which we will be left with a bland court after Justice Barak's retirement? Not necessarily. Already today the court has several excellent justices. And, looking around, we can identify at least one academic, whose name has not been mentioned in this connection so far, who is endowed with the proper substance and temperament. And there is at least one private lawyer who is endowed with the right spirit and the required skills. So that if there were no hostility, if there were no disrespect, if there were no political militancy, it would be possible to build a worthy court, brick by brick. But that is not how things have developed.
First came the controversial appointment of four justices on May 4, 2004, which created a crack in the public's confidence in the Supreme Court. Next, the appointment of Prof. Nili Cohen, from the faculty of law of Tel Aviv University, was blocked. Now we have the Gavison furor. With each new episode, tempers flare, the pressures mount, the discourse becomes increasingly blunt. So much so that it is difficult to sit in judgment, difficult to maintain quiet. If the process is not curbed, if the slide down the slippery slope persists, we will find ourselves involved in real politics. We will find ourselves with an American-style court, split between Republican justices and Democratic justices. But in this country a political court will be a genuine disaster, because here there is no constitution, we have no rooted democratic culture. Here everything is on the table. It follows that if the court's present status is not preserved, it will be impossible to stem the erosion. The flood will wash over us all.
It is impossible to mistake the mood that now characterizes the Supreme Court. The joy has faded, the passion has disappeared. There is a clear shift from offense to defense. The struggle is no longer to extend the judicial sector, but to preserve what exists. Even within the court there has been a change. On certain moral issues, Justice Barak has been pushed into a minority opinion. On other issues, of an organizational nature, the next court president, Justice Dorit Beinisch, is already breathing down his neck. People who follow developments closely often have the feeling that the prodigy's strength is spent, that Barak is today like Samson after his locks were sheared.
End of a chapter
In just nine more months, in September 2006, Aharon Barak will step down as the president of the Supreme Court, at the mandatory retirement age of 70. That will mark the end of a chapter not only in the history of the high institution but in the history of Israel, too. As attorney general, as a Supreme Court justice and as the president of that court, it is Barak who has defined enlightened Israel in the past decades. More than any other individual, Barak shaped the values and identity of liberal Israel. Accordingly, the question of what kind of legacy he will leave and what kind of court he will leave is a dramatic one. It touches not only his life reckoning, but also Israel's future in terms of moral values.
Not long ago, Barak held a series of conversations with journalists and public figures. Some of the conversations were very closed, others less so. What he was quoted as saying in the wake of them dealt primarily with his anti-revolutionary stance. According to these quotations, Barak does not disqualify Prof. Gavison because of her particular agenda, but because she is a revolutionary. He does not believe that revolutionaries can be judges and does not think that judges should be revolutionaries. This attitude by Barak is fraught with deep irony. For after all, who has been as revolutionary as Barak? Who like Barak has changed the agenda of an entire society through the court? And who like Gavison has opposed Barak's revolutionariness? Who like Gavison has warned against the dangers inherent in the court's transformation into the supreme tribunal of a revolution of values, however enlightened it may be?
So at the end of the day, and at the end of a riveting chapter in Israeli history, Aharon Barak and Ruth Gavison today hurl the identical argument against each other: Barak disqualifies Gavison for her revolutionariness and Gavison disqualifies Barak for his revolutionariness. After an extraordinarily radical decade in the history of law and society in Israel, both the court president and the jurist who is assailing him are nostalgic for a certain lost conservatism. Both the president and his opponent want to restore to Israel the restrained and cautious court ethos that has been lost. It is easy to argue against Barak that he sowed the wind and reaped the whirlwind; that the tidal waves that are now threatening to wash away his life enterprise are a direct result of the way he built what he built.
The same person who extended the canvass of the law to the point where, like a work by Christo, it enveloped the entire country, unavoidably caused the canvass to be rent. For if the hand of the law is in everything, then the hand of everything is in the law. If the court runs the state, in the end the state will run the court. It is utterly inevitable - just as Justice Moshe Landau foresaw. But this is probably not the time to settle accounts with Barak, not the time to draw up the profit-and-loss balance of his enterprise. This is because 2006, the year of his retirement, is going to a critical year, in which five new Supreme Court justices will be appointed. It will be the year in which the court of the coming generation will be shaped. A year in which a new era will be defined, an era of Israel without Aharon Barak.
What happened in the spring of 2004 cannot recur. It will be out of the question to appoint justices - some of them unimpressive - in a closed process that is played out in smoke-filled rooms. It will be out of the question to force on the public justices who draw their power solely from within their guild. On the other hand, the Supreme Court must not be demeaned. The highest court of the land must not be trampled underfoot and put at risk.
After the open and welcome collision between Justice Minister Tzipi Livni and Justice Barak, the time has come to retrench. The time has come to deal seriously and substantively with the future of the court. The distress of the Supreme Court is not a personal matter. It is not even an institutional matter. It is a general warning sign for all of Israel. Both Israeli politics and academia have a disturbing past. In more than one case the titans there left no successors. And for good or for ill, Aharon Barak is a titan. As such, the same pattern that derailed academia and politics in the past is liable now to derail the court.
However, because in the Barak era the court became a very potent institution with almost unlimited powers, the danger here is especially great. Therefore, the appointment of the five Supreme Court justices next year must be treated as a fateful choice. It is a choice which must extract the best that the Israel society has to offer and a choice to which the entire Israeli society must be a partner.