Of the public institutions on Planet Earth, nothing can probably beat the critical thinking and writing skills of the less than 10 men and women that make up the US Supreme Court. There is a constant clash and tension in their judicial rulings, and every decision is a reflection of that. But that tension and clash of views seem to enhance rather than diminish the collective brilliance of the Court. The writing may come from the ponente or a dissident, but one thing is clear: the stark and convincing power of the arguments laid down and the intellectual heft behind every judicial vote.
Think of Chief Justice John Roberts writing his unenthusiastic vote for Obamacare. Think of Ruth Bader Ginsburg writing her celebrated opinions on cases that aimed to whittle down individual rights and human liberties. The judicial views, which are mostly views on government power – and views on state and society – have been constantly characterized by diversity. But nothing has dimmed intellectual power that had been argued for or against a certain judicial issue of real import to the country.
The debates on the single issue on whether the Court should evolve with the times or should just stick to a strictly constructionist interpretation of what America’s Founding Fathers intended have turned out judicial writings that are enough for a practicing lawyer to read during his or her entire life of active legal practice.
For comparison, a local practicing lawyer can download a decision written down by Associate Justice Elena Kagan and compare it, say, with a decision written down by an associate justice of our Supreme Court. Will there be a difference?
Is there a place for an intellectual lightweight at the US High Court? Maybe. There are efforts to place a less-than-brilliant mind there. But just recall the attempt of President George W. Bush to nominate his then White House Counsel, Harriet Miers, to the High Court. Miers was forced to withdraw her nomination after critics pounced on her supposed lack of intellectual cred. Remember she was a White House counsel then, not just an ordinary lawyer. And her law school, the Southern Methodist University (this was where Justice Reynato Puno, a Methodist, trained) is not a pushover either.
The filling up of an SC vacancy in the US, because of that post’s sensitivity and impact on government and society, is a bloody process. Much of the nation gets involved in the process. One thing is guaranteed. The filling up of an SC vacancy is not done in a cavalier manner. After the public examination of the nominee’s cred, the whole Senate votes on the confirmation. The recent decision of the US senate leadership to use the so-called “ nuclear option” to get Judge Neil Gorsuch to the High Court because he can’t get the 60 votes required showed how hard the confirmation process is.
Which reminds us of this: Do you remember the name of the first appointee of President Duterte to the High Court? Do you recall bits and pieces on the process that brought him to the SC? The answer to the two questions, from 99 percent of the population, is No. Or zero. Despite the utter sensitivity of that post, and the impact that his votes on SC cases would have on society, we remember nothing of the recent filling up of our SC’s vacancy.
The current process, under which the Judicial and Bar Council lists down the nominees and gives a short-list to the President for a final choice, appears to be too inadequate to get the best man or woman for a vacancy at our own Supreme Court. The elementary scrutiny of a nominee’s competence to delve into the law and explain its majesty is not even part of the process.
Which brings us to another inadequacy, the corrupted structure of the Commission on Appointments, the bicameral body of 24, drawn from the HOR and the Senate, that passes judgment on the competence of nominees to cabinet posts and constitutional bodies.
In the recent rejection of Gina Lopez’s nomination as DENR secretary, one malignant thing stood out – the HOR contingent of 12 voted unanimously against Lopez and the most vocal advocate of her rejection was the brother of a mining tycoon with a venomous hatred for Lopez. Only in a tin pot democracy such as ours can the brother of a mining tycoon regulated by Lopez can sit in the CA and pass judgment on her competence to serve.
That an inspired choice who closed unsafe mines and taunted the mining billionaires can get booted out of the cabinet door on the collective vote of the entire HOR contingent is anomalous, yet perfectly legal under our tortured confirmation process.
These two inadequacies cannot go on and on and on and threaten our wobbling democracy.
The good thing is there is a solution. Do a Cha-cha, scrap the JBC and the CA and reform the confirmation process. Let the whole Senate sit as judge on competence and know-how and character.
The current process cavalierly shifts the chaff from the grain and confirms the chaff.