Supreme Court President Aharon Barak angered the system when he announced his opposition to the appointment of Prof. Ruth Gavison to the Supreme Court, because "she comes to the Supreme [Court] with an agenda." Barak is the last one who has the right to object to an "agenda" for a person interested in being a judge. Barak himself - as the one who defined the court as the entity that implements the will of the "enlightened public," and said "everything can be judged" - has dragged the court into the heart of the political dispute. In a paradoxical way, his position has made it possible to consider a Gavison appointment.
It appears that Barak's argument against Justice Minister Tzipi Livni, who openly supports Gavison and her positions, has weakened. Otherwise, it's difficult to understand his announcement - a clear political step, which in effect damaged Gavison's chances of being selected. Barak thus transformed himself and Gavison into a reflection of the problematic reality in the Supreme Court.
Gavison is one of the most brilliant and creative legal researchers in Israel. Her expertise in the theory of law and pioneering work in the human rights field have earned her recognition and appreciation, as has her deep, caring and enthusiastic involvement in public life. And that is also the problem: Gavison is mainly known through her clearly political work on Israeli public disagreements, and on this basis, her supporters want to send her to the Supreme Court. The most prominent example is the Gavison-Medan Covenant, which makes recommendations regarding religion-state questions.
At the initiative of the former head of the Yesha Council of settlements, Israel Harel, Gavison worked on the agreement, along with Rabbi Yaakov Medan, for three years. They received some recognition for their accord, including the EMET Prize and an award from the Avi Chai Foundation. Gavison even participated with think tanks that are major players in the political debate including the Shalem Institute and the Israel Democracy Institute.
Those looking for an explanation as to why Gavison chose to search for a shared language specifically with an extreme Zionist ultra-Orthodox rabbi may find it in this passage: "My cart [as a secular person] is not empty," wrote Gavison. "But it does not anchor me, because it is eclectic." In this way she attributes completeness to Medan's "cart." It's difficult to assume that she didn't know what his cart carries. The esteemed Biblical commentator did not do much to hide his opinions when, in the wake of the disengagement, he accused "the secular elite" of "back-stabbing," and said he had never recognized "the supremacy of the law."
In the introduction to the Gavison-Medan Covenant, the two formulated their own declaration: "The State of Israel is the place where the Jewish people fulfills its right to self-definition in part of its historic homeland." Gavison gave in to Medan on the issue of divorce and agreed that religious divorce, based on strict Jewish religious law, should be mandated so as not to increase the number of mamzerim (bastards, as determined by religious law), and Medan gave in to Gavison on civil marriage (which in any case is not an issue that bothers even the ultra-Orthodox). He agreed to allow some secular culture on Shabbat, and she gave in, amid obfuscation, on the issue of organ transplants.
They both described the motivation for the agreement as a deep fear of "a split in the nation." This isn't a philosophical position. Gavison chose to compromise with the settler dialogue, which has its own clear agenda. It is described gently by Medan in the reasons for the agreement, but harshly in other comments he has made. Gavison's compromised stance stems from the frank anxiety she expresses, in many of her writings, regarding the fate of the unity of the Jewish people in light of the splits in the nation and the demographic danger. It's difficult to ignore that this position is influenced by the political fear campaign that the nationalist camp initiated.
Nonetheless, some people believe (and Gavison is aware of this) that one must not compromise with this position, but rather wage a principled struggle against it. Gavison's outrageous position does not leave any choice even in the hands of Barak's critics, who are compelled to oppose her appointment. Even the fact of her growth in the political arena is a sufficient reason for opposition. Even if the leaders of Meretz were to advance the Supreme Court candidacy of jurist Moshe Negbi, for example, such activity should generate opposition among all in favor of keeping the judiciary separate from the legislative branch.
The dispute over the appointment is a good demonstration of the failure encountered by the Supreme Court. Officially, the court continues to function according to the old approach, whereby judges are considered to have no opinion, or the public doesn't know anything about the judges' opinions. In practice, the politicians' involvement in judicial goings-on has increased to such an extent that it's possible that the right, which abhors Barak and his values, eventually will bring about the end of this approach, similar to what is practiced in the United States. Even supporters of the change have to understand that it must not be done via opportunism, and that a public discussion of the matter must be held. Otherwise, Gavison's appointment is liable to constitute a decision in a debate that has not been held.
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