On the outside

To no one’s surprise, the Judicial and Bar Council (JBC) bought the “insider is best” argument and put five of them in its final list of eight. They are Antonio Carpio, Roberto Abad, Arturo Brion, Ma. Lourdes Sereno, and Teresita de Castro. The “outsiders” are Solicitor General Francis Jardeleza, former congressman Ronaldo Zamora, and former Ateneo law dean Cesar Villanueva.

It was Carpio who argued that tradition demanded that the most senior justice, namely him, succeed the last chief justice. Going against it, particularly by appointing an “outsider,” stood to demoralize the judiciary. That the JBC bought his argument you see not just in that it put five justices in the final list, but that it put him ahead of the line.

But what a pass we’ve reached, that after the glorious feeling of finally having ousted a chief justice who did little to advance the cause of justice, indeed who did so much to thwart it, we’re reduced to choosing between people who threaten more of the same or who have skeletons in their closets. God, that we should once again be put at the mercy of judges, or a selection committee, whose capacity for discernment, never mind imagination, does not extend beyond their noses. Given the task of weeding out the chaff from the grain, they threw out the grain and left the chaff. Where is Chel Diokno here? Where is Raul Pangalangan here?

As this list goes, you’ve got only two choices if you expect at least some change. One is Sereno, if only for her disagreement with reopening the Fasap case which the Supreme Court had already, and quite absurdly, ruled upon “with finality” three times. Of course she’s the youngest, but then age has never been the natural ally of wisdom in this country, as shown by the plethora of public officials na tumatanda nang paurong.

The Fasap case quite incidentally shows the kind of chief justice we need. That is the boy in the story of the emperor’s new clothes. He is not like everyone who agrees that the emperor is wearing finery because not to say so would be to be thought of as a fool. He (or she) is the boy who cries out, “The emperor is naked!” because he is. Put more plainly, we need a chief justice who has the capacity not for legal erudition but for common sense, a thing that has become uncommon with judges and lawyers generally. Can anything be more nakedly, or commonsensically, unjust than reopening a case the Court has already ruled upon with finality, let alone three times?

The other is Villanueva. He is the only “outsider” there who has nothing to hide. Unless the list is seriously rectified before P-Noy picks the next chief justice, he’s the one who most commends himself to it. Being an academician and an “outsider” are not his weaknesses, they are his strengths.

The notion that picking an “outsider” would demoralize the judiciary is silly. At the very least, if all you have to show for your tenure in the Court is to have produced legal concepts like a finality with no finality, to have assured that Lucio Tan would never lose his cases, to have protected Corona and Gloria Macapagal-Arroyo over and beyond the call of greed, you ought to be demoralized. Hell, you ought to be ashamed of yourself.

At the very most, it’s refuted by life. One of the best American chief justices of the 20th century was Earl Warren who was as outsider as you could get. He had been a three-time governor of California and was in fact on his third term when Dwight Eisenhower offered him the position of solicitor general. But before that could happen, the chief justice, Fred Vinzon, died. Eisenhower picked Warren to replace him to bridge the divide between the liberals and conservatives, to the monumental chagrin of the justices. Warren ended up being more liberal than conservative, to the monumental chagrin of Eisenhower who said appointing him “was the biggest damned-fool mistake I ever made.”

Not so for the rest of the country. Lacking judicial experience, Warren initially had senior associate justice, Hugo Black, handle meetings. But he learned quickly and was soon running things himself. He didn’t just gain confidence, he gained insight. He it was who produced such landmark decisions as  ending segregation between blacks and whites in public schools, championing “one man, one vote,” providing free legal counsel to indigent defendants, and outlawing mandatory opening prayer in public schools. His tenure as chief justice did not demoralize the judiciary, it lifted it up to lofty heights, thrusting the Supreme Court into the frontlines of social change.

The point is simple: Where the inside view is corrupted by inertia, myopia, cynicism, blindness, and resolute self-interest, the thing to do is to get the outside one. You need new blood to stop the cretinism that comes from incestuous relationships. It bears saying again and again, what we need from the new justice is not continuity, it is a break. What we need from the new chief justice is not to keep the Supreme Court as a bastion of legalism, it is to turn it into a leading institution for reform.

As in Warren’s America, we find ourselves mired in our own versions of mindless stupidities like segregation. What we need is a chief justice who has the vision, resolve and courage to fight the meddling of the Church in state affairs (not just the Catholic Church but the other churches; surely there’s something unconstitutional in the INC’s use of religion to compel bloc voting?) and the eroding of the moral fabric of the judiciary, the Supreme Court itself presiding over the wrenching of law from justice, wielding law to thwart the advance of justice, using law to keep justice from touching the corrupt, the murderous, the oppressive.

America gambled on an outsider and won.

We can always do the same.