THE LEGAL FRONT By J. ART D. BRION (RET.)  The appointment of Supreme Court justices (and of all lower court judges and justices) is a process that the 1935 Constitution modeled after the American Constitution.  It stayed with us until the 1987 Constitution came. In the 1935 model, the President chose and vetted his appointee who then had to face the congressional Commission on Appointments (the Senate, in the original American model) for confirmation and completion of the appointment process. Due to congressional participation, political considerations inevitably intruded. Those who watched the Kavanaugh confirmation in the US Senate would have a fair idea how our own appointment process proceeded before 1987. As a major reform aimed at minimizing politics in the judicial appointment process, the 1987 Constitution did away with the 1935 model in favor of the Judicial and Bar Council (JBC).  This council examines and pre-clears applicants, and recommends the worthy ones in a list submitted to the President. The latter, in turn, can appoint only from those in the JBC list. The JBC is composed of the chief justice as ex officio chairman, the secretary of justice, a retired member of the Supreme Court, and a representative each from Congress, the Integrated Bar, the legal academe, and the private sector. Whether the JBC has been performing to expectations is a question that may not seriously surface until the administration’s contemplated constitutional change comes. For now, the live and current interest is on the considerations the President makes in deciding who to appoint from a field of almost similarly worthy candidates. The essential qualifications of citizenship, age, and years of service are not problems for the President; the JBC in the regular course ensures that those in its list at least satisfy the basic requirements (though in one instance, a completed appointment to the SC was derailed and had to be withdrawn because of citizenship questions the SC pointed out). At the President’s level, what assumes importance are the qualities of competence, integrity, probity, and independence.  In weighing these, the Constitution and jurisprudence accord the President very wide discretion. Wider still is his personal discretion in considering traits or qualities beyond those constitutionally provided standards.  For example, nobody can question the President’s actions if, among others, he favors female appointees over males, younger ones over the old, or those from his school over those from other institutions. Thus, in the choice of a chief justice from among the incumbent justices, the President might just choose the most junior nominee over the senior ones.  This in fact happened when President Aquino chose Justice M.L. Sereno in 2012 (only to see her ejected from her position in 2018 because her JBC nomination was defective and was consequently declared void). The appointment by the President of a nominee whose views are compatible with his own is fully in rhythm with human nature and is only to be expected. A discerning President, however, would go beyond direct and simple comparisons and beyond the more obvious aspects of shared views or approaches; he would look deeper into character for the compelling motivations a nominee harbors. This in-depth look will give him the opportunity to know, with reasonable assurance, if indeed a nominee truly shares or is in accord with his  own core beliefs. This approach, however, may also bring into focus the President’s own core beliefs.  The public, to be sure, would want to know what these are. Can these be gleaned from his speeches and publicized pronouncements?  Will he, for example, strictly follow the rule of seniority as he previously professed? Or, should the attempt to read the President be based on his past actions?  In his initial appointments, he appointed some people close to him as well as others, not as close, based apparently on his forecasted needs (such as to forge overall peace and to work with all concerned sectors necessary for this purpose) or on the demands of politics or plain practicality. Was he driven again by practicality or by utilitarian ends when he later ditched some of his initial appointees in favor of those whose discipline and training predispose them to deliver the desired results? In the judiciary, his initial Supreme Court appointments have been more or less within the range of expectations except for the last, Justice Ramon Paul Hernando, who is younger than the previous appointees and who would be with the Court long after the President’s term is over. (Some discern from this move the deeper intent to give Justice Leonen – an Aquino appointee and a consistent dissenter – a competitor when the two justices are already ripe for the chief justice position.)  Will the President opt for deeper selection in appointing a CJ to satisfy some currently unexpressed intent? So far, the judicial appointees have been dominated by San Beda graduates with some notable exceptions with respect to the Supreme Court (JJ. Andy Reyes and Alex Gesmundo are Ateneans).  In the current race for the CJ, none of the contenders graduated from San Beda. Only one of them, the most senior, hails from Davao City.  All of them have records and linkages, in and out of the service, that should be closely examined. Will the President’s decision be affected by the current cases pending before the Court (two of which he should feel sensitive about, i.e., the ICC withdrawal case and the Trillanes case) and by forecasted future cases? Will the coming 2019 election have a bearing on his decision, in the way perhaps that the US midterm results might possibly affect the Trump administration and President Trump personally in the coming days? As a last point, whom will the President consult, within and outside his immediate circle, and who will gain the ear of the President at the critical time?  Consultation is only to be expected as decision making, though ultimately solely his own, can be lightened by timely sage advice. As in the old song, the public will know soon enough “which one will the fountain bless?” Until then and like lovers, we watch and wait in anticipation.  [email protected]