Raw emotions: Kavanaugh and others

Published October 3, 2018, 12:05 AM

by Charissa Luci-Atienza & Bernie Cahiles-Magkilat

THE LEGAL FRONT

By JUSTICE ART D. BRION (RET.)

J. Art D. Brion (RET.)
J. Art D. Brion (RET.)

The US Senate’s confirmation hearings of Judge Brett Kavanaugh’s appointment to the US Supreme Court cannot but remind me of our own Supreme Court vacancies and the coming appointments.

Two associate justice positions are now vacant, and Chief Justice Teresita de Castro will very soon retire. Compulsory retirement shall also catch up with four more associate justices next year.

The Kavanaugh hearings were bitter and emotional and the reasons are not hard to discern. The nominee faced a career-destroying sexual assault charge that allegedly took place in high school some 36 years ago.

In the hearings’ non-judicial setting, the charge – that could affect Judge Kavanaugh’s career and personal life – did not need to be proven beyond reasonable doubt. The evidence came from a witness, a trained psychologist, who understands human behavior and who had narrated her story very convincingly.

Kavanaugh answered the charge in the only way he perhaps knows as a trained and experienced legal professional. He looked at the circumstances that would win him his case in a court of law: he highlighted the meager evidence and their obvious gaps, and the circumstances that pointed to deliberate political machination.

But he also retorted angrily – even with tears – as he tried to portray himself as a victim.  This was his acknowledgement that he was facing the court of public opinion, a challenge that requires skills not very many lawyers have mastered.  Judge Kavanaugh obviously had not.

Beyond the personal level were higher stakes.  For a long, long time, the divide in the US Supreme Court has been between the conservatives and the liberals. This is reflected in the larger American political life by the political parties’ approaches and positions on public issues.

The Republican Party, to which the President who nominated Judge Kavanaugh belongs, generally stands for conservative causes – America is for Americans before anybody else.  The Democrats, on the other hand, generally support liberal causes: they stand for mankind’s greater good as the position that would best benefit America.

In many basic issues touching Americans in their daily lives, the US Supreme Court spoke in the past with a divided vote – 5 to 4 in a court of 9 members. The Kavanaugh appointment could decidedly tilt this trend in the Republicans’ favor.

In my experience as a lawyer, I have not seen an exactly similar situation in our country. The martial law period could have been a rich source of similarly painful encounters. But I was not yet a lawyer then; I only came across the martial law incidents in the newspapers, and began to see the reported cases much later. There was hardly any live TV coverage then.

While with the Philippine Supreme Court, only two cases aroused in me the emotions that I saw in the Kavanaugh proceedings. One was during the impeachment of Chief Justice Renato Corona when, beyond the televised impeachment hearing, a parallel drama took place within the court as we wrestled with the impeachment-related issues before us.

A private talk with the Chief Justice before the impeachment hearings began, likewise comes to mind. Unannounced, he came then to my chambers and informed me that he had just received word that the only way he could avoid the ignominy of impeachment was to resign from his position.

He also confirmed the impeachment’s suspected but unpublicized cause: past Court rulings adverse to the administration and one case in particular that personally affected the President and his family.

We spoke for almost 3 hours and in that time CJ Corona bared to me his innermost thoughts about the court: for the good of the Judiciary that he loves, he said, he will fight and will refuse to resign. As we now know, he refused to surrender the Judiciary to the Executive, and was impeached.  I still get emotional when I relive this experience in my mind.

My other touching experience at the court involved then Solicitor General Francis Jardeleza’s petition when he applied for his current associate justice position. This filing came after the rebuff of his initial efforts to secure non-judicial relief and when his back was already to the wall – about 40 days before the President’s deadline to fill up the vacant position.

By JBC regulation and court practice, the court makes its own non-binding recommendations to the JBC for vacant court positions. A twist to this routine occurred in filling up J. Robert Abad’s vacated position that SolGen. Jardeleza applied for.  We received a letter from Chief Justice Sereno suggesting that we do away with the court’s vote; instead, she suggested that we simply privately bring our personal recommendees to her attention.

An unquestioning court deferred to CJ Sereno’s wish; nobody objected until the following en banc meeting when then Associate Justice Teresita de Castro (now our chief justice) passionately inquired if the chief justice had indeed attributed to her the suggestion to do away with the voting. The chief justice denied the accusation but the confrontation alerted us to the possibility that something sinister could be afoot.

The De Castro-Sereno encounter did not end the Jardeleza affair as many other bitter arguments followed in court and before the JBC. These were mostly rooted in CJ Sereno’s career and family-destroying charges against the solicitor general, some of which came when they could no longer be formally answered. These are all reflected in the SC report of the case and I will not repeat them here.

Suffice it to say that a day before the President’s deadline, the court issued its ruling directing the JBC to include the solicitor general in its list of recommendees. The President forthwith appointed Francis Jardeleza as the 173rd justice of the Supreme Court.

The shameless manipulation in Jardeleza still spoils my day when I think about it.  I thus take my hats off to Justice Jardeleza who, ever the gentleman, took his oath of office, not before the President, but before the same chief justice who tried to deny him his appointment.

These recollections inevitably leave me with the further thought: Shall we see similar bitterness and raw emotions in any of the coming seven Supreme Court appointments?

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