The path to becoming an associate justice of the Supreme Court is not an easy one, but some presidents, or the appointing power, made it easier for some nominees than for most others. The numbers show that those who do not come from the judiciary have enjoyed better chances at making it to the Court.

At the present Supreme Court, seven justices spent their careers in the judiciary. But three of them will be retiring before the May 2010 elections.

Certainly, filling up the Supreme Court cannot be done according to a mathematical model. Yet there is more than common sense in the proposition that giving preference to the career jurists (provided they are not just about to retire) would be good for the administration of justice. Arguable as it may be, at least eight of the 15 members of the Court at all times should be “lifers,” to borrow the term from the military, referring to those who spent their entire careers in the armed forces.

Let’s look at the data.

Out of the 163 individuals who have been appointed to the Court since its establishment in 1901, 36 got installed despite having no previous judicial experience at any level. This century’s additions by President Arroyo to this privileged pool: Adolfo S. Azcuna (2002), Antonio Carpio (2001), Renato Corona (2002), Antonio Eduardo Nachura (2007), and Dante Tinga (2003).

Of these 36 “immaculates,” 11 became chief justices: Jose Abad Santos (1941-1942), Ramon C. Aquino (November 1985-March 1986), Hilario Davide Jr. (November 1998-December 2005), Marcelo Fernan (July 1988-December 1991), Enrique Fernando (1979-1985), Victorino  Mapa (July 1920-October 1921), Andres  Narvasa (1991-1998), Artemio Panganiban (December 2005-December 2006), Claudio Teehankee (April 1986-April 1988), Pedro Yap (April 1988-July 1988), and Jose Yulo (1942-1944).

For more than two decades (from April 1986 to December 2006) following the reconstitution of the Supreme Court after the Edsa upheaval of February 1986, the chief justices were drawn in an unbroken string from the appointees who had zero judicial experience—Teehankee, Yap, Narvasa, Fernan, Davide and Panganiban. This string was snapped only in December 2006, when the incumbent, Reynato Puno, was elevated to the post.

At least 51 of the 163 justices went the full route, starting as trial court judges, then undergoing additional seasoning in the appellate courts, before reaching the top. They are the lifers. The latest addition to this pool is the newest member of the Court: Justice Lucas Bersamin.

One fairly recent appointee, Justice Teresita Leonardo-De Castro (December 2007), went solely through the Sandiganbayan, which is both a trial court and an appellate court.

No judicial experience

It appears that those who have the highest probability of becoming chief justice are those justices without prior judicial experience, followed by those who were former judges who did not pass anymore through the appellate courts, then by those who served in the Court of Appeals without first having been judges of lower courts.

These figures appear to suggest that serving in both the trial courts and the appellate courts, or in the appellate courts alone, diminish rather than enhance one’s chances of becoming a chief justice. Conversely, zero prior judicial experience is not a handicap at all. Out of the 23 chief justices since 1901, 11 were judicially raw when first appointed to the Supreme Court.

Among the Philippine Presidents, most of such appointments were made by Corazon Aquino (12), followed by Ferdinand Marcos (5), Gloria Macapagal-Arroyo (5), Sergio Osmeña (3), and Fidel Ramos (3).

President Arroyo, of course, can still break her tie with Marcos. There are only three justices left who were not originally appointed by her: Ramos appointees Reynato Puno and Leonardo Quisumbing, and Estrada appointee Consuelo Ynares-Santiago. They are set to retire on May 17, 2010, Nov. 6, 2009, and Oct. 5, 2009, respectively, all before President Arroyo ends her present term on June 30, 2010.

Also set to retire are two of her own appointees: Justices Dante Tinga (May 11, 2009) and Minita Chico-Nazario (Dec. 5, 2009). Another of her appointees, Justice Ma. Alicia Austria-Martinez, is retiring effective April 30, 2009, citing health reasons, although she is not due to mandatorily retire until Dec. 19, 2010.

Concededly, appointments to the Supreme Court cannot be based on purely technical or professional standards, although the Judicial and Bar Council might lean towards these norms. The appointing power has its prerogatives and discretion. The Court cannot be filled wholly with Bar examinations topnotchers who may not want to be there, nor merely to create vacancies in the appellate courts below to allow the bottom feeders to rise up the judicial strata.

Ideally, a balance should be struck.

The matter is coming under the microscope now that the nation faces the specter of all the 15 justices of the Court being the appointees of a single President. This is supposed to be alarming, based on the popular theory that the appointees will be invariably indebted, beholden, and subservient to the appointing power.

This theory, however, has been discredited many times, for once appointed, the justices can proceed to decide independently, for they are then removable only by impeachment, death or incapacitation, and not at the whim of the President—although this constitutional security of tenure provided scant protection to the justices during the undeclared revolutionary interlude of the Aquino presidency in 1986.

From Marcos to Arroyo

In all, Marcos appointed 32 associate justices and six chief justices, from 1966 to 1985. Among his appointees, only six had no previous judicial experience: Enrique Fernando, Claudio Teehankee, Antonio Barredo, Estanislao Fernandez, Ramon Aquino and Lino Patajo. Of these six, Marcos promoted only two to chief justice.

In contrast, in a little over six years after the Marcos period, President Aquino appointed 12 associate justices without any prior judicial experience: Irene Cortes, Isagani Cruz, Hilario Davide Jr., Florentino Feliciano, Jose Feria, Marcelo Fernan, Andres Narvasa, Teodoro Padilla, Florenz Regalado, Flerida Ruth Romero, Abraham Sarmiento and Pedro Yap. It seemed that Aquino regarded most of the judges and justices from the Marcos period with disdain, although she did reappoint some of them to the Supreme Court.

Of these 12, President Aquino promoted three (Yap, Fernan, and Narvasa) to chief justice, along with Teehankee from the Marcos period. Thus, in six years, President Aquino appointed double the number of chief justices without lower-level judicial experience than Marcos did in 20 years.

Let us compare the post-Marcos period to the preceding era, to see the trends.

Of the 36 immaculates, 20 were appointed during the post-Marcos period. Of the 27 justices who were appointed to the Supreme Court with appellate court but no lower-level court experience, 12 were appointed during the post-Marcos period. It may be said that there is no clear trend here of either deceleration or acceleration in the appointments of this type of justices.

Of the 51 justices who went the full route, from trial to appellate courts, 19 were originally appointed during the post-Marcos period.

As the Supreme Court is presently composed, seven justices are lifers. In the order of their seniority, they are Consuelo Ynares-Santiago, Ma. Alicia Austria-Martinez, Conchita Carpio-Morales, Minita V. Chico-Nazario, Teresita J. Leonardo-De Castro, Diosdado M. Peralta, and Lucas Bersamin. Strictly speaking, only six are full routers; Justice Leonardo-De Castro is a special case, having served in the Sandiganbayan but not in any other tribunal beforehand; the Sandiganbayan, however, is both a trial court and an appellate court.

In the coming months before the May 2010 elections, three of the seven lifers will be retiring: Austria-Martinez on April 30, 2009, Ynares-Santiago on October 5, and Chico-Nazario on December 5. Also set to retire before the elections are immaculates Tinga (May 11, 2009) and Quisumbing (Nov. 6, 2009). They will be followed into the dusk of retirement soon after the elections by Chief Justice Puno (May 17, 2010). Hopefully, in filling up the resulting six vacancies, preference will be given to nominees who are ladies or lifers.

Peralta’s chance

In the post-Puno Court, the most senior Justice will be Antonio T. Carpio, followed by Renato C. Corona. These two immaculates will be around for some time, with their retirement ages not coming until 2019 and 2018, respectively. The next in line, Carpio-Morales, is a lifer, but she is due to retire in 2011; farther down the line, after Velasco and Nachura, is another lady lifer, Leonardo-De Castro. Both of these lady justices are unlikely to rise to Chief Justice, because it would not be until Oct. 26, 2019, that Carpio, the justice most likely to succeed Chief Justice Puno, will reach retirement age—and they would both be retirees before then.

After Carpio retires in October 2019, the most senior justice would be Peralta, a lifer. Finally, after a gap of 44 years from the watch of Querube C. Makalintal (1973-1975), the Supreme Court might get a lifer as its Chief Justice. The decade-long wait will be longer than the two years and five months that will be left to Peralta to serve as Chief Justice (presuming that the President promotes him to that office), before he retires on March 27, 2022. But to all those many, many lifers who have been denied the opportunity to become the land’s chief magistrate, the long wait should make the reward only sweeter.

Still, the process is capable of achieving at least social justice, by giving preference to those who have labored in lower levels of the judiciary with competence, integrity, and distinction. For elevating them to the Supreme Court will serve to inspire hundreds of other lifers across the archipelago to excel in their vocation despite the low pay, the scant creature comforts, and the high risks, instead of joining the big law offices as a safer, faster, better-paying, and more glamorous way to the judiciary’s peak.

But appointing one, two, or three lifers to the highest tribunal won’t be inspiring at all. That will bespeak tokenism, rather than preferential treatment. A minimum of eight of the 15 justices should come from nominees who have risen through the judicial ranks. This minimum can be achieved in the next few months, and maintained from that point on.

Is justice for jurists asking too much?

The author is a law student at the University of the East.