"x x x.
The constitutional importance of the JBC lies in its effective recommendatory power and authority. The President cannot appoint anyone that the JBC does not shortlist and neither can the President insist, request, or demand that more names be added to the list.
The Supreme Court itself has made these matters clear. This may not seem significant to many people but viewed from the perspective of power, it represents a significant check on the President’s appointing power. Notably, it is constitutionally prescribed - one that lies outside of the traditional system of checks and balances arising from separation of powers.
For this reason, the JBC’s only weapon is the record: that which would reveal how it deliberated, provide the reasons and justifications for including one and excluding another and allow a peek into the thinking of each member of the JBC in voting the way they did.
The record would show, more than any tally sheet, how one nominee could garner a near majority and yet not win the nod of another. Two instances would be illustrative: first, the Senate representative, who was the only hold out in voting for the acting chief justice and when asked why he didn’t vote for him, simply quipped, “why should I?”; and second, the presiding officer, an incumbent member of the Court, who voted for all his colleagues save for one, never provided reasons for his failure or refusal to vote for that colleague.
These two nominees -- the acting Chief Justice and the first incumbent appointed by the current President -- are significant simply because the former stands as the putative favorite, by reason of tradition, and the latter stands as the putative favorite, by reason of having been the first to have earned the favor of the current President.
For this reason, the JBC’s only weapon is the record: that which would reveal how it deliberated, provide the reasons and justifications for including one and excluding another and allow a peek into the thinking of each member of the JBC in voting the way they did.
The record would show, more than any tally sheet, how one nominee could garner a near majority and yet not win the nod of another. Two instances would be illustrative: first, the Senate representative, who was the only hold out in voting for the acting chief justice and when asked why he didn’t vote for him, simply quipped, “why should I?”; and second, the presiding officer, an incumbent member of the Court, who voted for all his colleagues save for one, never provided reasons for his failure or refusal to vote for that colleague.
These two nominees -- the acting Chief Justice and the first incumbent appointed by the current President -- are significant simply because the former stands as the putative favorite, by reason of tradition, and the latter stands as the putative favorite, by reason of having been the first to have earned the favor of the current President.
The failure of JBC members to provide reasons for their favor or disfavor of these two nominees is a glaring omission and, to me, a disservice in terms of the JBC’s discharge of a constitutional duty.
Meaningless list
Meaningless list
A list, sans the record or the reasons for the JBC members’ votes, does not add anything to the appointing power’s consideration and guided discretion, and simply undermines the process of vetting and selection. It failed to provide the President the only thing of value that was expected of the JBC: its reasoned, informed and prudential judgment of those it had personally interviewed and vetted.
A list, sans the record, also fails to commit to institutional and national memory the reasons for the choice. Viewed in the context of the recent impeachment of Renato Corona, this shows that the JBC has failed to learn from its own mistakes, because a record of reasons for the votes would be helpful in any impeachment process that may arise in the future.
A JBC process that leaves room for the President to indulge in his own shortlist (as the President has himself admitted) with the justification that he might have information that the JBC failed to obtain is the surest indication that the JBC model of judicial vetting and screening is, at best, inadequate and, at worst, irrelevant.
The process of submitting nominations for vetting, screening and evaluation by the JBC is intended to, in fact, minimize or eliminate the President’s need for his own intelligence gathering as precisely any information, positive or negative, that may be available on a nominee should have been made available to the JBC. And with the President’s representative to the JBC (the Justice Secretary acting ex officio, except that in the Chief Justice search, it was an Undersecretary from the Office of the President—much nearer to home), any such information should have been made available directly to the JBC.
By refusing to provide for a record, in the form of specific reasons for each vote, the JBC undermined itself and diminished the role it was given by the Constitution.
As it stands, by requiring its members to simply vote without giving reasons, it is clearly just an administrative clearing house acting pro forma on nominees but going no further than posing standard, de rigeur questions without going more deeply into matters that may provide a sharp distinction between one nominee and the other. Such a view of itself is glaringly inconsistent with the reasons some of its members have provided to justify, self-servingly, their inclusion in the JBC.
For instance, the reason why an associate justice who is not the acting chief justice was allowed to preside over the deliberations was so that the Court itself would be represented; the reasons why the Senate and the House sued to be allowed two votes was so that the Congress, as one institution, could have representation; and the reason why an Undersecretary was allowed to sit, despite objections, was to provide the Office of the President representation in the JBC.
Contradictions
A list, sans the record, also fails to commit to institutional and national memory the reasons for the choice. Viewed in the context of the recent impeachment of Renato Corona, this shows that the JBC has failed to learn from its own mistakes, because a record of reasons for the votes would be helpful in any impeachment process that may arise in the future.
A JBC process that leaves room for the President to indulge in his own shortlist (as the President has himself admitted) with the justification that he might have information that the JBC failed to obtain is the surest indication that the JBC model of judicial vetting and screening is, at best, inadequate and, at worst, irrelevant.
The process of submitting nominations for vetting, screening and evaluation by the JBC is intended to, in fact, minimize or eliminate the President’s need for his own intelligence gathering as precisely any information, positive or negative, that may be available on a nominee should have been made available to the JBC. And with the President’s representative to the JBC (the Justice Secretary acting ex officio, except that in the Chief Justice search, it was an Undersecretary from the Office of the President—much nearer to home), any such information should have been made available directly to the JBC.
By refusing to provide for a record, in the form of specific reasons for each vote, the JBC undermined itself and diminished the role it was given by the Constitution.
As it stands, by requiring its members to simply vote without giving reasons, it is clearly just an administrative clearing house acting pro forma on nominees but going no further than posing standard, de rigeur questions without going more deeply into matters that may provide a sharp distinction between one nominee and the other. Such a view of itself is glaringly inconsistent with the reasons some of its members have provided to justify, self-servingly, their inclusion in the JBC.
For instance, the reason why an associate justice who is not the acting chief justice was allowed to preside over the deliberations was so that the Court itself would be represented; the reasons why the Senate and the House sued to be allowed two votes was so that the Congress, as one institution, could have representation; and the reason why an Undersecretary was allowed to sit, despite objections, was to provide the Office of the President representation in the JBC.
Contradictions
All these reasons contradict the JBC’s own procedure of not providing a record—presumably, the members of the JBC are asked to sit not for their skill at ticking off items on a chart but because of their erudition, their intelligence, their wisdom and their judgment; their capacity to separate the chaff from the grain and to sharpen the distinctions between one nominee from the other and defend their evaluations.
As it stands, all it takes apparently is the ability to tick off names from a checklist and quip, when asked why one didn’t vote for a clearly pre-eminent choice, “why should I?”
Coming up with such a list would present no extraordinary hardship for the JBC as its own rules already require such a list under Rule 8, except that it requires that the list be given to the Supreme Court. Rule 8, section 1 requires that “(i)n every case involving an appointment to …the Supreme Court, the (JBC) shall give due weight and regard to the recommendees of the Supreme Court."
As it stands, all it takes apparently is the ability to tick off names from a checklist and quip, when asked why one didn’t vote for a clearly pre-eminent choice, “why should I?”
Coming up with such a list would present no extraordinary hardship for the JBC as its own rules already require such a list under Rule 8, except that it requires that the list be given to the Supreme Court. Rule 8, section 1 requires that “(i)n every case involving an appointment to …the Supreme Court, the (JBC) shall give due weight and regard to the recommendees of the Supreme Court."
"For this purpose, the Council shall submit to the Court a list of the candidates for any vacancy in the Court with an executive summary of its (the JBC’s) evaluation and assessment of each of them, together with all relevant records concerning the candidates from whom the Court may base the selection of its recommendees.”
Insult to the public
If this requirement were complied with in the present search, it should pose no difficulty for the JBC to formalize a final record of its “evaluation and assessment” of each nominee in its final list. Note that Rule 8, Section 1 requires that this list be submitted to the Supreme Court before a vote is taken; presumably, the JBC followed its own rules and submitted this detailed list for all nominees and not just a tally sheet. If it did not comply with this requirement, then it must give reasons why it failed to do so considering that it is part of its own rules.
Notably, a list, sans the record, is an insult to those who have invested their time, efforts and attention into this search—the people.
This search, more than any other in the past, has piqued the public interest and has provided an opportunity for public opinion to be directly invested in the JBC deliberations through social media participation.
For the JBC to simply tick off names without providing reasons or justifications on record made accessible and public, is for it to simply tell everyone who took time to tweet, post or comment that their opinion is unimportant and that their duty is discharged by simply ticking off one or more names on a list without becoming transparent as to the reasons, without being accountable for their justifications and without being clear about their judgments.
For an entity that is given such enormous power—the ability to restrict a president’s power to appoint members to the courts—such a posture will simply not do.
This search, more than any other in the past, has piqued the public interest and has provided an opportunity for public opinion to be directly invested in the JBC deliberations through social media participation.
For the JBC to simply tick off names without providing reasons or justifications on record made accessible and public, is for it to simply tell everyone who took time to tweet, post or comment that their opinion is unimportant and that their duty is discharged by simply ticking off one or more names on a list without becoming transparent as to the reasons, without being accountable for their justifications and without being clear about their judgments.
For an entity that is given such enormous power—the ability to restrict a president’s power to appoint members to the courts—such a posture will simply not do.
x x x."
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