COMMENTARY
BY MANUEL F. ALMARIO

The invitation by the Judicial and Bar Council for all nominees for chief justice to a job “interview” is demeaning to both the nominees and the Supreme Court itself.

Justices of the Supreme Court are chosen; they do not apply for the job. In the United States, from which we borrowed many of our democratic concepts and practices, the President nominates the justice, and the nomination is confirmed by the Senate after a proper hearing by a bipartisan judiciary committee. When a vacancy occurs, the President conducts a search for a nominee, aided by his staff and advisors. The potential nominee is not even aware that he or she is being vetted until notification by the Office of the President.

The nominee’s background is examined by the Federal Bureau of Investigation, which submits a report to the Senate judiciary record to determine suitability for office, then holds a hearing to question him or her about judicial record, political philosophy, ideology, and anything else deemed appropriate. The committee then makes a recommendation to the Senate, which approves or disapproves the nomination by majority vote.

Under the Philippines’ 1935 Constitution, the procedure was for the President to make the nomination. It is then submitted to the Commission on Appointments (CA), which is composed of 24 members (12 each from the House of Representatives and the Senate). If the CA disapproves by majority vote, the President makes another selection.

Thus, there was a real check and balance, as the CA is a body independent of the Office of the President. This provision of the 1935 Charter may be considered an improvement over the US procedure, because it allowed both chambers of Congress to participate in the appointment of a justice.

Under the 1972 Philippine Constitution, only the President had the power to appoint the justices of the Supreme Court and judges of the lower courts. No check and balance, in accord with the dictatorship imposed by Ferdinand Marcos. But under the 1987 Cory Constitution, a Judicial and Bar Council was established to make a list of at least three nominees from which the President selects the justice.

The JBC has eight members, who serve for a term of four years. They are the Chief Justice, who presides as ex officio chair, the justice secretary, a representative of the Integrated Bar of the Philippines (IBP), a professor of law, a retired member of the Supreme Court, a representative of the private sector, and one representative each of the House and the Senate.

Except for the two Congress representatives, all are appointed by the President and are normally expected to follow what he/she dictates. Hence, the check and balance over appointments to the judiciary was abolished. It is a dictatorship in disguise.

Moreover, legal practitioners from the IBP and the “private sector” (whatever that means) are included in the JBC as presidential appointees, injecting private and professional interest in the selection of justices and judges. Legal practitioners may expect to gain some advantage if appointed to the JBC because of influential connections to the anointed one. (That is why the IBP tended to favor then Chief Justice Renato Corona in the impeachment case.)

The JBC is a farce, making possible the appointment of mediocre and self-serving justices, and habitually kowtowing to the appointing power. We should go back to the system established by the 1935 Constitution in which a real check and balance was maintained in appointments to the judiciary.
The US system in appointing justices has worked effectively.

The US Senate has rejected certain nominees not just for their lack of personal integrity but also for their positions on civil liberties, human rights, and social and political issues. One noteworthy case involved former Attorney General and Yale law professor Robert Bork, who was nominated to the Supreme Court in 1987 by President Ronald Reagan. His nomination was strongly opposed by civil rights and women’s groups for his “stated desire to roll back civil rights decisions” by previous courts.
The late Sen. Ted Kennedy took the Senate floor to oppose Bork’s nomination, declaring: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and often the only—protector of the individual rights that are the heart of our democracy…”

As solicitor general under President Richard Nixon, Bork was responsible for the “Saturday Night Massacre”—Nixon’s firing of special prosecutor Archibald Cox and his deputies for requesting the submission of the White House tapes that implicated Nixon in the Watergate scandal. He was considered a loyal political operator of the disgraced President. (Corona was impeached by the Senate for, among other things, showing partiality to former President Gloria Macapagal-Arroyo in her attempt to leave the country despite pending court cases.)

On the other hand, President Barack Obama’s nomination of Sonia Maria Sotomayor in 2009 as associate justice of the Supreme Court—its first Hispanic justice and its third female justice—was approved by the US Senate by a 68-31 vote despite opposition from the Republicans. Public opinion was sharply divided over her nomination because of her Latino background, with US Rep. Newt Gingrich at one time calling her a “racist”.
Sotomayor also refused to answer when asked what her stand would be if the decision in Roe vs. Wade, which legalized abortion in the United States, were brought before her. But her integrity and prudent decisions as a judge in the district and appellate courts won her the support of the Senate and much of the American public.

One would not expect the eight members of the JBC, most of whom are presidential appointees, to publicly debate over their choices for the Supreme Court. They operate as a semisecret chamber. Since the JBC was established, there has been no public debate over the qualifications, opinions and judicial records of the nominees.

In the past under the 1935 Constitution, when the President took full responsibility for the nomination of a justice, and Congress, through the CA, shared in the responsibility, the Philippines had great justices like Jose Abad Santos, Jose P. Laurel, Claro M. Recto and JBL Reyes, whose integrity and erudite decisions resonate through the years.
We should return to the CA or the Senate the power to confirm or ratify presidential appointments to the Supreme Court and the lower courts. With elected people’s representatives, and not only a cabal of eight, participating in the selection, perhaps we will get a more effective, wiser and more righteous judiciary.

Manuel F. Almario is a lawyer and journalist. He is the spokesperson of the Movement for Truth in History (Rizal’s Moth).