Singapore—“So you have no objection to… a law banning use of cream in coffee?” US President Josiah Bartlet asked Peyton Cabot Harrison III, his possible Supreme Court nominee.
“I like cream as well, but I would have no constitutional basis to strike down the law,” Harrison replied.
(Yes, freshman student, you get points for saying “substantive due process.”)
The “West Wing’s” Season 1, Episode 9 beautifully captures the gravity of a Supreme Court appointment. A staffer combs through Harrison’s decisions, briefs and articles, all the way to his student days. An anonymous caller points him to a Harvard Law Review student article, where Harrison refused to recognize the right to informational privacy.
Bartlet agonized, in 1999, over how crucial this right would be to data privacy, mobile phones and government databases. He summons Harrison to the White House to personally confront him regarding a 29-year-old student article.
Sadly, all our students remember regarding Supreme Court appointments is retired Justice Angelina Sandoval Gutierrez’s public scolding of a candidate who cited the stupid “national pantheon” argument widely misunderstood to be the crux of the Marcos burial case—even though 13 out of 14 justices ruled that this national pantheon is a different cemetery from the Libingan ng mga Bayani.
Vice President Leni Robredo’s supporters warn that the voting in the Marcos burial case foreshadows Robredo’s ouster under an electoral protest. They call to scrutinize the Supreme Court and the potential 12 justices President Duterte will appoint.
We must always scrutinize the Supreme Court. But as Gutierrez demonstrated, our scrutiny is often shallow. Perceptions of our justices are almost always founded on superficial impressions.
Only law students who study a broad sample of recent Supreme Court decisions can possibly form credible impressions of our justices. Media report only high-profile decisions, but usually inaccurately, as Gutierrez proved.
What Justice Marvic Leonen says on Twitter receives more attention than his Supreme Court opinions. Did news reports explore how the dissent of Justice Benjamin Caguioa seemed to explicitly criticize Leonen as the only justice to accept the pantheon argument? Or why Leonen rejected every anti-Reproductive Health Act argument because he felt the Court had no jurisdiction, not because he championed extreme views?
The last chief justice interviews explored how Senior Associate Justice Antonio Carpio only wished to return to teaching after retirement, not his many years of pivotal decisions.
I once sat down beside Carpio at a Philippine Law Journal event, almost 10 years after he spoke at my graduation. I asked him how his philosophies had changed. He smiled and said none did. He grew surer and more entrenched in his initial positions, some dating back to his legendary 1972 student article.
Former Inquirer publisher Raul Pangalangan has an extensive academic record that was thoroughly scrutinized when he was appointed to the International Criminal Court, not in his chief justice interview.
Among the present candidates, I have deeply respected Court of Appeals Justice Japar Dimaampao since I almost walked into him as he prayed in a corner of the University of the East law faculty lounge. But I wish Muslim students publicized his actual writings beyond generalities such as his being the youngest Court of Appeals justice ever appointed, to make it crystal clear he is not a token Muslim.
Let us level up how we appoint Supreme Court justices by doing our research. Let us transcend a culture of idolizing “legal experts” based on profound nonsense for Facebook.
Returning to Bartlet, he then asked Roberto Mendoza: “without… special circumstance, (can) someone (be) fired for refusing to take a drug test at the order of the president?” Mendoza answered this would violate the constitutional rights against unreasonable search and to privacy.
Bartlet thus appointed the first Hispanic US justice, foreshadowing Justice Sonia Sotomayor’s real life appointment 10 years later.
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