The Supreme Court without Barak
The selection of Gavison and Kremnitzer would sear President Barak's heart but save his enterprise. It would also transmit an important educational message: Even giants are human. Not the sons of gods. And not immortal.
It's already an open secret: In September 2006, when Supreme Court President Aharon Barak ends his brilliant term on the bench, he will leave behind a colorless High Court. He will leave behind him a dedicated and decent group of justices, who don't know how to do what Barak did so well: define the values of the State of Israel.
The irony is searing. Barak did not believe in a court of justices. He didn't believe in a modest, conservative court of professionals, subordinate to the law and interpreting it cautiously.
Barak believed in a court that is the law: a court with (almost) no limit to its powers, and with (almost) no restrictions on its interpretative range. A court that is the last fortress and the highest temple of Israeli enlightenment. A court that is an ivory tower of philosopher-kings who protect Israeli democracy, both from its elected officials and from its electorate.
The argument is far too familiar. It is not clear whether the almost-Platonic legal structure founded by Barak is worthy. It is not clear whether it was right to replace the old Jeffersonian democracy, where the nation is sovereign, with the new democracy of Barak, where the sovereign is a closed order of Supreme Court justices. On one subject there can be no debate: In order to maintain the judicial regime established by Aharon Barak, there is a need for justices who are similar to Aharon Barak. Intellectuals and social leaders, people of the highest caliber.
There are no people of such caliber in the Supreme Court that Barak is leaving behind. The justices are good judges. Some of them are very good. But there are no intellectuals, teachers of ethics, geniuses. What happens to every closed group that reproduces within itself has happened to the closed society of the Supreme Court justices as well. In the absence of new blood, new ideas and self-criticism, the tribe has slowly become dulled. The sect has slowly faded. The order has lost its vitality.
In hindsight, it is clear that President Barak tripped himself up. Barak put his own life's work at risk. He created an intolerable gap between the breadth of the powers that he granted the court and the narrow horizons of his justices.
If the Supreme Court remains colorless, it cannot be Israel's moral conscience. If the court remains technocratic and uninspired, it will lose the moral authority it acquired in the era of Agranat-Shamgar-Barak. Toward the end of Barak's term, anyone who is interested in the good of the court must protect it from itself. Those who are interested in a strong and enlightened court must be the ones to enrich it with new blood, new ideas and a new spirit.
Time is short and the dilemma is clear. In the coming months, three new Supreme Court justices will be appointed. Justice Minister Tzipi Livni is backing Prof. Ruth Gavison. Others support Prof. Mordechai Kremnitzer. President Barak is opposed to both candidates. However, it must be said that both these candidates are worthy. Both would give the court the sparkle that it will lack in Barak's absence. Both would give it an intellectual center of gravity and a moral spine. The fact that Gavison and Kremnitzer represent different ideological approaches is welcome. A court that is in constant tension between a Gavison-pole and a Kremnitzer-pole, would be a pluralistic, effervescent and fascinating court which would confront Israel's fundamental problems courageously and creatively. It would be a refreshing change after the dogmatic uniformity of Barak's "Catholic" court.
Aharon Barak is the only giant of our generation. What Ben-Gurion was to the governmental system of the 1940s and 1950s, Barak was to the judicial system of the 1980s and 1990s. But just as at a certain stage, Israel saluted Ben-Gurion, thanked him and moved on, now the judicial system has to salute Barak, thank him and move on. The selection of Gavison and Kremnitzer would sear President Barak's heart but save his enterprise. It would also transmit an important educational message: Even giants are human. Not the sons of gods. And not immortal.