Advise And Consent

For a Constitutional Law professor, one of the great joys of having internet connection is to be able to watch C-Span in streaming video. Especially, at this time watching the Senate confirmation hearings of Judge John Roberts as President George W. Bush’s nominee to be the next Chief Justice of the Supreme Court. This is in line with Senate’s constitutional mandate to provide advise to the president and to give their consent to the nominee if passed muster.

It was exciting watching John Roberts verbally fenced with equally competent senators from both sides but more so with Democratic senators who, after all, believe that John Roberts is a strict constructionist and conservative judge who will undo women’s reproductive rights (euphemism for abortion) and overturn the landmark case of Roe v. Wade which laid the constitutional justification for abortion.

While the exercise may do nothing to stall the confirmation of Judge John Roberts as Chief Justice, at the very least, the American public already knows the judicial philosophy of their justices.

Which brings to mind our country’s perverted method of appointing justices to the Supreme Court.

In the United States, the first order of business in filling a vacancy in the Supreme Court is for the president to appoint a nominee, and then allow the nominee to go through the wringer in the Senate Judiciary Committee, be grilled morally and intellectually. If the nominee shall have satisfied the qualms of the senators in the Judiciary Committee, his nomination shall be endorsed before the whole Senate to be voted upon. If confirmed by the Senate, he takes his seat as one of the 9 Brethren.

In the Philippines, the order is reversed. When a vacancy arises in the Supreme Court, names are submitted to the Judicial and Bar Council, a constitutional body tasked to investigate and interrogate possible judicial nominees. After going through interviews with the members of the Judicial and Bar Council, it will submit at least three names to the President from which the latter will appoint to the Supreme Court.

In paper, the exercise looks insulated from politics. But on the contrary, the whole process is so tainted with politics that a review of the appointment procedure ought to be called into order.

This JBC, as it is called, was the brainchild of the late Chief Justice Roberto Concepcion who felt that during the pre-martial law years, the judicial appointees were at the mercy of the Commission of Appointments who demanded favors from appointees and brazenly played politics.

The JBC is composed of the Chief Justice, the Secretary of Justice, a member of Congress, a member of the Integrated Bar of the Philippines, a law professor, a retired member of the Supreme Court and a representative from the private sector.

While it sounds august, the problem with the JBC is that nobody knows what goes on in the deliberations except the members and the nominee himself. Recent measures have been implemented to make the hearing public but suspicion still persists that all a nominee has to do to get the nod of the JBC members is to secure the endorsement of a senator or a congressman, talk to padrinos or talk to the members individually to secure their endorsement. Tales have been told of judges-nominees visiting the law office of legislators just to curry their favor with the legislators demanding a quid pro quo in the event a case which their firm handles lands on the nominee’s sala.

On top of that, the JBC is required under the Constitution to nominate at least three nominees to the President and to let the President finally decide who to appoint. Again, at this instance, the President can demand concessions from the justice-nominee or payback in the future in the event a case against the president or her acts are questioned before the courts.

Thus, you have politics at two levels, on the level of the JBC and on the level of the President. Are we better off with the JBC? No, we are better off without it.

We should bring back the Commission on Appointment or if not, have the Senate Justice Committee grill the potential judicial nominee to determine a nominee’s philosophy and not his political connections.

I wonder, prior to the justices being appointed, did we know at all what were the judicial philosophies of Justice Panganiban and Justice Carpio on the issue of judicial legislation or judicial intervention on a legislative action? All I knew was that Jovito Salonga strongly endorsed Atty. Artemio Panganiban’s nomination. All I knew was that Atty. Tony Carpio was the consiglieri of the Arroyo family and before that, had the ear of FVR. But did we ever hear about what they really stood for? Are endorsements sufficient grounds to hail them as Supreme Court justices?

Did we ever ask the judicial philosophy of Justice Puno on the right to privacy? Is it really guaranteed under the Constitution or not? Did we ever wonder what would have been the answer of Justice Carpio-Morales on the constitutionality of euthanasia in the light of the right to life provision of the Constitution?

We never knew their philosophies because we were never given the opportunity to prod their intellect nor did we bother to insist on one. Unlike in the United States where comparison is inevitably made, it is said that some of the appointments to our Supreme Court were not made on the basis of intellectual prowess but on political insurance for future cases, an amicus curia, if you will, not in its true Latin sense but a friend in Court to ensure a vote. Is this true? One can only hope not.

Chief Justice Concepcion decried politics in the confirmation process of the Supreme Court justices but what he failed to realize that with certain exceptions, he, along with the other members of the Supreme Court of yore, stood a foot taller in intellectual competence and independence.

We need to reverse the appointment process in the selection of members of the judiciary, more so, the members of the Supreme Court, to truly shield the High Court from the wiles of politics. We need to be especially assured that these justices will make decisions not out of political accommodation but being the last line of defense of an ordered, civilized society, the gavel will equally fall on the just and the unjust.

I hope I do not do a Purisima for this.