Sounding Board
Choosing Supreme Court justices
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:15:00 11/10/2008
Filed Under: Judiciary (system of justice)
MANILA, Philippines - Lawrence Tribe put it very well when he said that “the answers we actually get when we ask questions [about constitutional issues] depend to some degree on who is answering them—including who is sitting on the Supreme Court at the time we ask.” And he quotes Justice Robert H. Jackson as saying, “We are not final because we are infallible, we are infallible because we are final.” But, of course, this is only until a later Court says it was not so final after all.
In recent months we have had decisions coming from the Supreme Court characterized by strong prevailing opinions and equally strong dissenting opinions. You can almost predict with precision which justices will take which side. The latest one, the one on the MOA-AD, could have gone either way depending on which side one swing vote would go. And people are speculating who the swing vote was and why.
Those who have been following the direction of US Supreme Court decisions cannot escape noticing how sharply divided they have also been. Crucial issues about abortion, state powers, school prayer, right to bear arms, war powers and others have been decided by a 5-4 vote with the outcome depending on which side Justice Anthony Kennedy votes. Although the votes divide along liberal or conservative positions, at bottom they can really be for or against the president’s ideological inclination.
Our Supreme Court has also had a history of being linked with the preferences of the incumbent president. It was most pronounced during the authoritarian years when the Supreme Court, not without good reason, was often referred to as the Marcos Court. (I remember the late Justice Cecilia Muñoz Palma coming to my office at the time when she was being considered for the Supreme Court. She asked me what I thought she should say because she was being asked whether she was loyal.) Thus it was that a good number of the provisions of the 1987 Constitution were precisely introduced to reverse decisions of the Marcos years.
My impression is that the influence of the president was not so pronounced during the Cory years and the Ramos years. I prefer not to say anything about the current Supreme Court.
In the coming year the retirement of seven justices will create an equal number of vacancies in the Supreme Court. Will the political preferences of the president have a role in the choice of new justices? I say political preferences for good reason. Our justices have not been known for dividing along ideological lines.
The division among US Supreme Court justices is usually along ideological preferences, and the search for new justices is dictated by ideological alignment for or against the president who might be liberal or conservative. Thus, Jeffrey Toobin’s recent fascinating book, “The Nine,” about the US Supreme Court, concludes: “So one factor—and one factor only—will determine the future of the Supreme Court: the outcome of presidential elections. Presidents pick justices to extend their legacies.” He adds: “We can expect nothing more and nothing less than the Court we deserve.”
Toobin’s conclusion could just as well be descriptive of our current Supreme Court. And there is no reason to believe that the Supreme Court of the coming year will be any different. The President will have the opportunity next year to choose seven men and women of her persuasion. Yes, seven! Perhaps even eight!
Under the 1935 Constitution the president’s choice of justices of the Supreme Court was limited by the need for confirmation by the Commission on Appointments.
Under the 1973 Constitution there was no check on the president’s appointing authority.
The 1987 Constitution did not revive the need for confirmation by the Commission on Appointments in the belief that confirmation by the Commission on Appointments had made the process too political in a pejorative sense. Hence was created the Judicial and Bar Council to act as a check on the appointing authority. Has this been an improvement?
The Judicial and Bar Council consists of the chief justice as ex officio chairman, the secretary of justice, a representative from Congress, together with a professor of law, a retired member of the Supreme Court, and a representative of the private sector as regular members. The regular members are appointed by the president with the consent of the Commission on Appointments. The President can appoint only from a list of at least three names; but she is free to reject all of them and ask for more names until the preferred name surfaces.
The fruit of the pudding is in the eating. You be the judge of the justices appointed under this system. Without a doubt, the preferences of the president are a factor in the choice of the nominees produced by the Judicial and Bar Council.
Of course, presidential preference is also a factor in the choice of US Supreme Court justices. But the major difference between the US process and the Philippine process of choosing is that in the United States the president’s preference is known ahead of time. It is the president who makes the initial nomination and the president’s nominee is subjected to a rigorous public hearing which can result in rejection, as in the case of Robert Bork. The expectation of a strong opposition can cause a nominee to withdraw, as happened in the recent case of Harriet Miers. Nothing like these can happen in the Judicial and Bar Council. In our system, the president’s communicated preference can be sandwiched and disguised by the JBC between two foils.
Serious talk about constitutional amendment after the 2010 elections is growing in strength. If we should have an amendatory process, I am certain that one of the provisions which will be subjected to examination is the manner of choosing Supreme Court justices and other appellate justices. Until this happens, we have to make the present system work.
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