Why Barrett’s hearings are keenly watched
By Artemio V. Panganiban
Philippine Daily Inquirer
October 18, 2020 at 5:20 am

The rushed, marathon hearings in the United States (US) Senate to confirm the nomination made by US President Donald Trump of US Court of Appeals Judge Amy Coney Barrett, 48, as the ninth justice of the Supreme Court of the United States (Scotus) is keenly watched in the Philippines and elsewhere.

By way of background, Scotus justices are philosophically divided into two camps: “conservatives” and “liberals.” The conservatives believe in “originalism” which interprets the Constitution according to what its advocates claim is the original intent of its framers, and in “textualism” which interprets laws according to the words used by the lawmaking body, not to its intent.

On the other hand, the liberals or progressives believe in a living Constitution; one that grows with time, solves the vagaries of the present, and anticipates the needs of the future. They rely on the intent more than on the words, phrases, and punctuation marks of the law.

US Presidents who belong to the Republican Party always choose conservatives who are expected to favor their conservative platform, while the Democrats always opt for liberals who mirror the liberal philosophy of their political party.

For about a hundred years, Scotus was almost evenly divided, 5-4, between these two groups. During the last two decades, the conservatives had the slim edge but one or two of them (often Justice Anthony Kennedy, now retired, and/or Chief Justice John Roberts) would at times change sides and enable the liberals to win some landmark cases.

Such was the situation, 5-4, in favor of the conservatives, until Justice Ruth Bader Ginsburg, a liberal icon, died on Sept. 18. Immediately, Trump nominated Barrett who is a self-confessed follower and former law clerk of the late Justice Antonin Scalia, who, for several decades during his incumbency, was the recognized leader of the conservatives.

With Barrett widening the conservatives’ edge, 6-3, in the Court, Trump feels assured of reelection if not by the ballots, then by his wild claim, without any proof, that the Nov. 3 US presidential election would be fraudulent due to irregularities inherent in mailed ballots.

He is probably thinking of replicating Bush v. Gore (Dec. 12, 2000) in which the Scotus, voting 5-4 along the doctrinal divide, rejected the manual recount of the facially defective automated ballots in Florida, and validated the victory of George W. Bush, a Republican, as US president.

Scotus is relevant to us because of our close political, economic, and legal ties with the US. The Democrats tend to be more sympathetic to us than the America-centric Republicans.

And also because some Scotus decisions affect us—directly, as for instance, Republic v. Pimentel (June 12, 2008), in which the conservative-dominated Scotus rejected the bid of the Filipino human rights victims to attach the $35 million deposit of Arelma (allegedly owned by the Marcoses) in an investment bank in NYC; and indirectly, as for instance, District of Columbia v. Heller (June 26, 2008) in which the Scotus, voting 5-4, upheld the American right to bear arms, settling a 217-year-old US controversy that reverberated here.

Differing from Scotus, however, our Supreme Court, in Chavez v. Romulo (June 9, 2004), did not find constitutional basis for the right to bear arms.

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Retired Justice Ameurfina A. Melencio-Herrera has passed to the Heavenly Kingdom. Humble and soft-spoken, she was a brilliant fortress of competence, integrity, probity, and independence in the Supreme Court, and of passion and hard work as the founding chancellor of the Philippine Judicial Academy (PhilJa). I fondly remember her as our examiner in commercial law when I took the bar exam in 1960.

She graduated from UP as class valedictorian and topped the bar exam. She joined the judiciary as a trial judge and climbed the judicial ladder till the highest court. Having attained seniority, she could have been named CJ had President Cory Aquino not reorganized the Court in the aftermath of the Edsa People Power.

As CJ, I secured a grant of P300 million from Japan. I turned over to her the check given to me on Jan. 26, 2006 by then Japanese Ambassador Ryuichiro Yamazaki, which she wisely used to build the PhilJa Center in Tagaytay where continuing education and training for judges are now held. An everlasting monument to honor a brilliant icon!

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