In 2000, Professor Mordechai Kremnitzer, Professor Ruth Gavison and Dr. Yoav Dotan published a book entitled "Judicial Activism in the Israeli High Court of Justice." There, the two senior professors extensively detailed their agenda concerning the High Court of Justice. Gavison does this under the heading, "The Public Involvement of the High Court of Justice: A Critical Look," while Kremnitzer does it underneath "The High Court of Justice and the Broad Perception of its Role: A Defense Brief."
Gavison, former president of the Association for Civil Rights in Israel (ACRI), writes, for example, that there must be a new debate on the policy of the High Court of Justice on the matter of the right to bring an action, and the question of justiciability, that the accessibility to the court procedure should be limited and that far more respect should be given to decisions by the executive branch.
Kremnitzer writes that narrowing the involvement of the High Court of Justice is liable to lead to a considerable weakening of the rule of law. There is no doubt that Gavison has a clear agenda with regard to the policy of the judicial activism of the Supreme Court. Kremnitzer has one too. This is part of what makes them such outstanding candidates for the position of Supreme Court justice.
The question is how has it happened that Supreme Court President Justice Aharon Barak believes that Gavison's agenda disqualifies her from serving on the Supreme Court, and insofar as is known, he has no such objection to Kremnitzer.
"Ruthie," said Barak in his famous agenda speech, "is already coming into the court with an agenda. Her agenda is not good for the Supreme Court. Ruthie's agenda is contrary to what the Supreme Court must do. I am not saying that she is not a good candidate, but at this time her outlook is not appropriate for the Supreme Court."
It is difficult not to conclude that the main difference between the two agendas is that Gavison is opposed to judicial activism and Kremnitzer supports it. But it is possible to wonder what the big difference is between Gavison's agenda concerning the Supreme Court and that of retired deputy president of the Supreme Court Rabbi Menachem Elon, a leading opponent of the view that everything is "judgeable." Would Barak also disqualify Elon today? Does opposition to judicial activism today automatically disqualify anyone who holds that view from serving on the Supreme Court? Is there an essential difference between Gavison's agenda and that of Supreme Court Justice Elyakim Rubinstein, apart from the fact that Gavison is a far more charismatic spokesperson for judicial conservatism?
In 1997, Barak suggested to a member of the High Rabbinic Court of Appeals, Rabbi Shlomo Daichovsky, that he join the Supreme Court. This request reflected an understanding that the Supreme Court must also include more conservative justices. But Daichovsky would have been there as a fig-leaf, whereas Gavison could serve as real opposition.
In his remarks, Barak did chalk up one major achievement. He turned Gavison into the darling of the right. Anyone to whom Barak objects so strenuously, they conclude on the right, is worthy of support, even if she did serve as president of ACRI. Gavison not only wishes to limit the authority of the High Court of Justice, she believes that it is not the court's role to serve as "a supreme moral authority in the society."
Gavison expresses the old Zionist consensus: among other things, she supports the establishment of locales for Jews only, the setting of stringent limits on the naturalization of non-Jews as citizens of Israel, and the closure of businesses on the Sabbath. It is possible (and necessary) to oppose these positions in our times, but since when have they been out of bounds for public and judicial discourse?
The eternal declaration, "I disapprove of what you say, but I will defend to the death your right to say it" is attributed to Voltaire. It is doubtful that he ever said this, but this detracts not one whit from the force of the axiom. Gavison should be on the Supreme Court, among other reasons, because of her opinions that are not really accepted there. On the court, she will be one of 15 justices, most of whom think like Barak. It would be seemly for Barak to fight with all his might for her to be there.
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