THE PRESIDENT who will be elected in the May polls can change the composition of the Supreme Court, its legal orientation and, indirectly, its decisions. Thus, choosing a new president is also choosing a new Supreme Court.
Let me explain. At least 10 incumbent justices will reach the compulsory retirement age of 70 in the next six years. The 10 constitute two-thirds of the Court’s full composition of 15. In fact, as I will shortly explain, the new appointees of the new president could even reach 12, not just 10.
The 10, in the order of their dates of retirement, are: Jose P. Perez (Dec. 14, 2016), Arturo D. Brion (Dec. 29, 2016), Bienvenido L. Reyes (July 6, 2017), Jose C. Mendoza (Aug. 13, 2017), Presbitero J. Velasco Jr. (Aug. 8, 2018), Teresita J. Leonardo-De Castro (Oct. 8, 2018), Mariano C. Del Castillo (July 29, 2019), Francis H. Jardeleza (Sept. 26, 2019), Lucas P. Bersamin (Oct. 18, 2019) and Antonio T. Carpio (Oct. 26, 2019).
Two others, Diosdado M. Peralta (March 27, 2022) and Estela M. Perlas-Bernabe (May 14, 2022), will retire also within the term of the next president which will end on June 30, 2022.
The question of who will appoint their successors can be contentious because under the Constitution (Art. VII, Sec. 15), “(t)wo months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”
Not applicable to SC? Nonetheless, the Supreme Court, voting 9-3 in De Castro vs JBC (March 17, 2010), ruled that this constitutional ban on “midnight appointments” does not apply to the Court because under another constitutional provision, “[a]ny vacancy [in the Court] shall be filled within ninety days from the occurrence thereof.”
This controversial decision enabled then President Gloria Macapagal-Arroyo to name Renato C. Corona chief justice though the post became vacant only after CJ Reynato S. Puno retired on May 17, 2010, which is within the prohibited period.
To avoid controversy, an alternative solution was found this year when Justice Martin S. Villarama Jr. voluntarily retired early, on Jan. 16, 2016. He is supposed to retire only on April 14, 2016, which is within the prohibited period. His early retirement allowed the Judicial and Bar Council (JBC) to nominate, and President Aquino to appoint, Alfredo Benjamin S. Caguioa to the resulting vacancy without violating the ban.
If the new president invokes De Castro vs JBC or the early retirement option, he or she could name 12 of the 15 justices, thereby giving the Court a new face, with only three members, CJ Maria Lourdes P.A. Sereno, Justice Marvic M.V.F. Leonen and Justice Caguioa, retaining their seats.
And if the new president names relatively young justices, as President Arroyo and President Aquino did with some appointees, the Court’s transformation could have a lasting impact on jurisprudence, and could be a lasting legacy provided the presidential power to appoint is wielded prudently.
Critical, too, in this judicial metamorphosis is the JBC, which vets the list of nominees from which the president chooses the appointees.
Though headed by the chief justice, the JBC can nonetheless be swayed by the new president because he or she has the prerogative to name five of its seven members: the secretary of justice (as ex officio member) and the four regular members.
Industry and philosophy. The Constitution requires all magistrates to be “of proven competence, integrity, probity, and independence.” It also provides that Supreme Court justices must be natural-born citizens, at least 40 years old and have been judges of a lower court or practiced law for at least 15 years.
Additionally, I believe that justices must also be industrious and have a sense of urgency to enable them to cope with the Court’s heavy case load. By meticulously peering into their judicial record, one can reasonably assess the industry of career jurists. But for noncareer jurists (those coming directly from private practice or from the academe), a method to determine their capacity for hard work and speed should be crafted by the president and the JBC.
I also believe it is now time to weigh the legal philosophy of aspiring justices. In the United States, the appointment of new justices is always an election issue because Republican presidents name “originalists, textualists or conservatives” while Democrats appoint “liberals or progressives.” (For details on this philosophical divide, see my columns on July 12 and 19, 2015, and Oct. 26, 2014.)
An ongoing controversy in the United States is whether President Barack Obama, a Democrat, should name the successor of recently-deceased Justice Antonin Scalia, the leader of the four originalists in the nine-member US Supreme Court.
Obama has named respected US Court of Appeals Judge Merrick B. Garland, but the Republican majority in the Senate, which vets appointees to the federal judiciary, vowed to “freeze” Garland’s appointment, believing that only the new US president, to be elected in November 2016, should appoint Scalia’s successor. Otherwise, the delicate balance between the originalists and the liberals would be skewed by an outgoing president.
At bottom, since the metamorphosis of our Supreme Court is at stake in the coming polls, I believe the presidential candidates should disclose how they would appoint new justices.
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