In the Philippines, appointments to the Supreme Court have been awfully controversial especially with President Gloria Macapagal-Arroyo expected to appoint fourteen out of the fifteen sitting Supreme Court justices by the end of 2009. Coupled with the latest controversy on the President's attempt to influence the Judicial and Bar Council (JBC) in its shortlist of candidates to the Supreme Court, to look at other systems of selection and appointments in the Judiciary would seem to be an interesting exercise.
In the most recent shortlist submitted to Malacañang, the JBC submitted six names to the President for the two vacancies created by the retirement of Justices Alicia Austria-Martinez and Dante Tinga. In a letter to the JBC dated 24 July 2009, the President returned the shortlist citing that a wider array of nominees is needed. The Judicial and Bar Council did not make any changes to the shortlist submitted to the President and the latter made her two most recent appointments based on the unchanged JBC shortlist.
At present, the President has appointed four of the seven expected vacancies at the Supreme Court this year (or 12 out of the 15 sitting SC justices) with the appointment of Justices Diosdado Peralta, Lucas Bersamin, Roberto Abad, and Mariano del Castillo. The President has yet to make three more appointments in 2009 with the upcoming retirement of Justices Consuelo Ynares-Santiago, Leonardo Quisumbing, and Minita Chico-Nazario.
The Philippine and United States Supreme Courts: A Brief Overview
The Philippine Supreme Court consists of fifteen justices headed by a Chief Justice. Here, vacancies are brought about by retirements of justices or in such event when a Supreme Court Justice becomes incapacitated to perform his/her duties. A mandatory retirement age of 70 is imposed upon all justices of the Judiciary.
The composition of the US Supreme Court on the other hand is not specified in the United States Constitution and the power to determine the number of Supreme Court justices rests upon the US Congress. As in the Philippines, the US Supreme Court is headed by the Chief Justice with currently eight (8) sitting associate justices. The US Supreme Court justices are given lifetime appointments and vacancies are brought about by the Justices' desire to retire from service, death, or conviction on impeachment.
In analyzing the Philippine and US appointments process to the Supreme Court, the appointments process is divided into three major stages: the pre-nomination stage, nomination stage, and the final stage of appointment and confirmation.
The Pre-Nomination Stage
In the Philippines, the pre-nomination stage includes the submission of applications to the Judicial and Bar Council and the JBC's evaluation of candidates. Applicants to the Supreme Court can be either recommended (by any group or individual) or interested individuals may also apply on their own. The authority to nominate candidates to the judiciary is vested in the JBC which handles the whole screening process of candidates. As part of the qualifications, the candidates must be a natural-born citizen of the Philippines; at least forty years of age; must have been a judge of a lower court or if not, must have engaged in the practice of law for fifteen (15) years; and must be a person of proven competence, integrity, probity, and independence.
The members of the Judicial and Bar Council are appointed by the President, with the consent of the Commission on Appointments. The JBC is composed of the Chief Justice of the Supreme Court, Department of Justice Secretary, Representative from the Congress, Retired Justice of the Supreme Court, Academe, and Integrated Bar of the Philippines.
As part of its process, the JBC makes an announcement of vacancies and call for applications. After which, the JBC announces the names of applicants together with the schedule of the candidates' public interviews. In theory, the JBC is supposed to conduct the background investigation of applicants to the judiciary. During public interviews, candidates are questioned regarding their views on Constitutional issues, recent controversies, judicial philosophy, and other pressing issues such as for instance, death penalty, executive privilege, right to information, and others. In some cases, the JBC questions the candidates on their past decisions and actions.
In the United States on the other hand, the pre-nomination stage involves the evaluation of prospective nominees to the Supreme Court including background investigation of candidates. The search for a US Supreme Court nominee entails a thorough research which is one of the most important activities in the pre-nominations process. Both the prospective nominees' private and public backgrounds are investigated by the Federal Bureau of Investigation (FBI), officials from Justice Department, and aides from the White House. The President can likewise enlist private lawyers to assist in evaluating the prospective nominees. Towards the end of the investigation process, the President may want to meet with one or more of the candidates to help him decide his final nominee for the Supreme Court. This was the case of Justice Sotomayor whom President Barrack Obama met right before he nominated her in May 2009.
The Nominations Stage
As mentioned earlier, the authority to nominate appointees to the judiciary in the Philippines is vested in the Judicial and Bar Council. After the conduct of public interviews, the JBC deliberates on a shortlist of candidates to be submitted to the President. Based on its rules, the JBC shall give due weight to the recommendees of the Supreme Court in the conduct of its evaluation. An open-voting policy was adopted by the JBC in December 2008. With the adoption of this policy, the results (tally sheet alone) of the JBC deliberations on the shortlist of candidates are now supposed to be released to the public. The JBC submits a shortlist of at least three (3) candidates to the President for each vacancy.
In the US case on the other hand, the President nominates a candidate for the Supreme Court after the background investigation and initial evaluation of prospective nominees. Note that the US President's approval of a candidate does not instantaneously mean a sit in the federal judiciary's highest court. This instead signifies the beginning of the next stage in the process: the confirmation. Although the power to nominate a candidate is vested upon the President, confirmation of such candidate depends upon the "advice and consent" of the US Senate. The process of appointing a Justice is provided in the US Constitution with the Appointments Clause stating that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the Supreme Court." The sharing of power between the US President and Senate remains to be the basic feature of Supreme Court appointments.
It is said that neither the Constitution nor any federal law requires that a Supreme Court Justice be a lawyer, but all appointees to the US Supreme Court were in fact, lawyers. Their Constitution likewise does not speak of any qualifications of a Supreme Court Justice thus, the President can literally nominate anyone subject to confirmation of the US Senate. The same with what Philippine laws provide, the US President usually searches for a person of competence and integrity; a person who can decide on cases with highest level of objectivity and impartiality. The President likewise seeks a person who shares with him/her, the same vision of the nation and the Court.
The Appointments and Confirmation Stage
The JBC's shortlist of candidates is meant to limit the President's discretion in exercising his/her appointing power. From among a shortlist of at least three candidates prepared by the JBC, the President makes appointments to vacant judicial positions within ninety (90) days from the occurrence of the vacancy. Unlike in other cases, such appointments need no confirmation.
In the US case, after nomination is the process of confirmation. Aside from Senate, an important body in the confirmation stage is the Senate Judicial Committee (Committee) which somehow has similar functions as that of the Philippines' Judicial and Bar Council. The Committee, formed in 1816, has the task of considering the nominations made by the US President for federal judgeships including the US Supreme Court. The Committee is currently composed of 19 members: 12 members from the majority party, and seven members from the minority. The ratio of majority to minority members on the Committee is based on the ratio of majority to minority members of the Senate. In the appointment of Senate standing committees or in filling up vacancies, the Senate by resolution appoints the chairman and members of committees. A separate vote shall be done in the appointment of the chairman and members of any committee on demand of any of the Senators. Senate voting in this regard should be done by ballot on demand of one-fifth of the Senators present.
Sotomayor has been nominated by US President Barrack Obama to replace retired Justice David Souter in the US Supreme Court. Her nomination was formally submitted to the US Senate on June 1, 2009 and a series of confirmation hearings for Sotomayor's nomination started in July.
The Senate Judiciary Committee's consideration of a Supreme Court nominee has three stages: a pre-hearing investigative stage, public hearings, and the concluding stage when the Committee decides on their recommendation to the US Senate.
The Pre-Hearing Stage is when the Committee conducts its own comprehensive investigation about the President's nominee. One of the documents considered by the Committee is the confidential reports from the FBI. The American Bar Association's (ABA) Standing Committee on Federal Judiciary likewise conducts an evaluation on the nominee's integrity, professional competence, and judicial temperament and such evaluation is reported to the Senate Judiciary Committee. The chairman of the ABA Committee on Federal Judiciary or an ABA representative is at times invited as one of the witnesses during Senate confirmation hearings for the nominee.
It is an interesting tradition in the US Supreme Court appointment process for a nominee to pay "courtesy calls" to individual Senators. The nominee visits the individual Senators to provide an opportunity for the legislators who are not members of the Senate Judiciary Committee to get to know the nominee.
It has happened several times since the appointment of the first US Federal Supreme Court Justices in 1789 that the Senate has not confirmed candidates nominated by the President. Some nominations were rejected by the Senate in roll-call votes and some were withdrawn by the President due to Committee or Senate opposition to the nomination.
As in the case of the Philippines' JBC, confirmation hearings which are open to the public and media, are scheduled for the Committee to probe the nominee on his/her legal qualifications, background, past decisions, as well as to question the nominee on Constitutional controversies, judicial philosophy, and principles that will guide him/her in rendering future decisions, if and when appointed. The Senate Judiciary Committee also conducts closed-door session with nominees for confidential background reports that have been brought to the Committee's attention.
The confirmation hearings for Sotomayor lasted for four days from July 13 to July 16. During these public hearings, members of the Committee raised issues concerning her previous decisions and views about past Supreme Court decisions. The Committee also questioned Sotomayor's role in the Puerto Rican Legal Defense Fund. Testimonies from witnesses were also heard during the confirmation hearings. Some of the witnesses present were Sotomayor's former associates and colleagues, leader of Conference on Civil Rights, representative from Center for Equal Opportunity, and President of the Hispanic National Bar Association, among others. Most of the witnesses advocated for Sotomayor's confirmation.
On 28 July 2009, the Senate Judiciary Committee in a session opened to the public and media, voted 13-6 in favor of Sotomayor. The Committee made the report to the full Senate through the submission of a Committee Report containing the views of the Committee members on whether the nominee should be confirmed by the Senate.
Once the report reaches the US Senate, the floor debate begins. Similar to the confirmation hearings, the floor debates on appointments to the Supreme Court is open to the public, media, and live nationwide television coverage which started in 1986. In their voting, the Senators stood one by one to vote aloud. On 6 August 2009, the US Senate voted 68-31 for Sotomayor, the 111th Justice of the US Supreme Court. Sotomayor was sworn in August 8 by Chief Justice John Roberts.
Some Points to Ponder
Some experts including Constitutionalist Fr. Joaquin Bernas believe that a return to the 1935 system of appointments to the Supreme Court is still better than the current system of appointments. Based on the Constitution of 1935, the justice appointed by the President is subject to confirmation by the Commission on Appointments, somehow similar to the current appointments process adopted for US Supreme Court Justices.
As in the Philippines however, we cannot deny that the US Supreme Court appointments process is also highly political. It is not always the case that Senators decide on the basis of their objective assessment of a nominee but based on the dictates of their political affiliation: on whether one is a Republican or a Democrat. In fact, many people view the US Senate Vote on Sotomayor's confirmation as a reflection of the differences among political parties with three-fourths of the Senate's 40 Republicans voting against Sotomayor. As of July 2009, the Senate is composed of 58 Democrats, 2 independents, and 40 Republicans. To prevent Sotomayor's nomination, a unanimous Republican vote should have been guaranteed plus an additional 11 more from non-Republicans.
Given these realities therefore, to discuss which of the two systems of appointments is much better would just entail a long, if not endless, debate and discussion. In the course of reviewing the two systems, it would perhaps be more beneficial to emphasize the good practices in the US Supreme Court appointments process which we can adopt in our own judicial appointments.
The first lesson in the US Supreme Court appointments process should be the access to information. The US process is characterized by an effective, timely, and efficient access to all relevant information from nomination to confirmation hearings to Senate voting up until the swearing in of a confirmed justice. Aside from the fact that confirmation hearings were aired on national television, the hearings can likewise be viewed online. The Senate voting was also done in public, thus, citizens can easily find out how their legislators voted during the Senate confirmation. All related materials on Sotomayor's appointment including hearing records, Committee votes, Senate votes, Committee questionnaire, archived webcast of committee hearings, and other resources were made available in the Senate Judicial Committee website.
The various citizen groups that have advocated for or against Sotomayor's confirmation is actually clear evidence that access to information and availability of resources on Sotomayor's nomination greatly helped raise the level of discourse and debate on Sotomayor's appointment.
The Philippine experience on a transparent selection and appointments process to the Supreme Court is truly far behind the US experience. For example, despite the JBC's adoption of open-voting policy in December 2008, various groups such as the Supreme Court Appointments Watch still finds it difficult to obtain copies of tally sheet from the Judicial and Bar Council. This is aside from the fact that civil society organizations and the general public are still kept in the dark on how the JBC members deliberate on their shortlist as this meeting is done in closed-door session.
Another aspect of the US and Philippine Supreme Court appointments that might be good comparing are the kinds of questions asked of candidates during public interviews and confirmation hearings. Going through the transcripts of Sotomayor's hearings, one may realize that the quality of questions of the members of the Senate Judiciary Committee are not very different from those questions raised by the Judicial and Bar Council during public interviews. It is good to note though the amount of time spent to examine a nominee during confirmation hearings in the United States. Four days were spent to probe a single nominee which gives members of the Senate Judiciary Committee ample time to evaluate the nominee and enough opportunity to assess the nominee. And with the length of time provided for confirmation hearings, the public likewise gets the chance to know more about their prospective Supreme Court associate justice.
Some of the questions for Sotomayor included her opinion on past US Supreme Court decisions. The members of the Committee likewise probed her on her past decisions such as that of the United States versus Giordano case-a conviction against the Mayor of Waterbury, Connecticut, her case of the Second Amendment, and on why does her panel in Connecticut versus the American Electric Power which lasted for four years without the issuance of any decision. Questions about her reactions on charges of racism against her were also raised during the hearings.
There had been a slightly heated exchange between Senator Jeff Sessions and Sotomayor in discussing the latter's independence as Sessions reiterated Sotomayor's previous statements saying: "I accept the proposition that a difference there will be by the presence of women and people of color on a bench...my experiences affect the facts I choose to see as a judge."
Sotomayor was also questioned regarding her view on the Supreme Court's involvement in the Bush vs. Gore case which many people see as an example of the judiciary improperly injecting itself into a political dispute. Other questions raised were about her views on marriage, abortion, and gun ownership.
In the case of JBC public interviews, most of the questions are standard for all the candidates. Some of the questions include the candidates' reason(s) for applying as Supreme Court Justice, their concept of justice, judicial philosophy, and their viewon the expanded jurisdiction of the Supreme Court. The JBC also asks about the candidates' most important contribution to the Supreme Court and on how the JBC can improve its processes. The other more specific questions were regarding issues on Charter Change, Executive Privilege, death penalty, and other current issues. Applicants are likewise questioned about their achievements, expertise, on what significant cases they have handled, as well as their judicial performance.
The next important aspect of US Supreme Court appointments worth noting is the comprehensive investigation on the background of each nominee. We have learned that there are two levels of investigations conducted for US Supreme Court appointments: first is during the pre-nomination stage and second, during the confirmation process with the Senate Judiciary Committee. The reports on the nominee are critical substance for the President and the US Senate's evaluation of a nominee.
In the Philippine experience, the critical exercise of the JBC investigating the background of candidates to the judiciary is hampered by limited or lack of resources. Note that the JBC is not only concerned with the selection process for Supreme Court but for the entire judiciary.
Obviously, there is a huge disparity between the grand task of the Judicial and Bar Council and the support provided to the JBC to effectively implement its mandate. In the case of Sotomayor for example, two and a half months were dedicated to evaluating the qualifications, merit, and fitness of a single nominee with not only the Senate Judiciary Committee at work but the FBI, ABA, the US Senate, and other organizations. In the Philippines, the Judicial and Bar Council can evaluate as many as fourteen candidates in one vacancy and then come up with shortlisted nominees in a very short period of time. These crucial responsibilities of the JBC on Supreme Court appointments may also coincide with other vacancies in the Judiciary which the JBC is also responsible for such as vacancies in the lower courts for example.
Again, with this grand undertaking, it should be helpful for the JBC to forge an effective partnership with various institutions which can assist in the background checks of candidates such as lawyer groups, and CSOs to also bridge the gap between the lack of resources and the need for candidates' information.
As earlier argued, to debate on which system brings about the more qualified justices for the Supreme Court will take us back to the letters of the Constitution and the long history of Supreme Court appointments. With three (3) more upcoming vacancies in the Supreme Court this year, the situation calls for the President, the Judicial and Bar Council, watchdogs and civil society organizations, and the public in general to partake in ensuring an effective and efficient selection and appointments process we have at present.
Ours is not a perfect selection and appointments process. The more important challenge therefore is to make the present system work for a transparent, accountable, and highly credible selection process of only the worthy and qualified justices to the highest court of the land, the very fundamental pillar of democracy-the Philippine Supreme Court.
Sonia Sotomayor Supreme Court nomination, http://en.wikipedia.org/wiki/Sotomayor_nomination
United States Senate Committee on the Judiciary, http://judiciary.senate.gov
United States Committee on Rules and Administration, http://rules.senate.gov/public/index.cfm?FuseAction=RulesOfSenate.View&Rule_id=3cca38c0-aa38-4095-8c90-7be71325623e&CFID=14510674&CFTOKEN=12464357
United States Senate Committee on the Judiciary, http://en.wikipedia.org/wiki/United_States_Senate_Committee_on_the_Judiciary
Rutkus, Denise Steven. Supreme Court Appointments Process: Roles of the Senate, Judiciary Committee,and Senate : CRS Report for Congress, July 6, 2005 (updated). Congressional Research Service, Library of Congress. Available for download at http://fpc.state.gov/documents/organization/50146.pdf
Bernas, Joaquin, S.J., Appointing a Supreme Court Justice, Philippine Daily Inquirer, August 3, 2009. This article can be found at http://opinion.inquirer.net/inquireropinion/columns/view/20090803-218475/Appointing-a-Supreme-Court-justice
 United States Senate Committee on Rules and Administration, Rules of the Senate, Rule XXIV, Appointment of Committees, http://rules.senate.gov/public/index.cfm?FuseAction=RulesOfSenate.View&Rule_id=3cca38c0-aa38-4095-8c90-7be71325623e&CFID=14510674&CFTOKEN=12464357