One of the most urgent issues facing the legislature when its new session opens is to review the Council of Grand Justices nominees. Three months ago, President Chen Shui-Bian (陳水扁) submitted an impressive list of nominations to the legislature, but the confirmation procedure was postponed. During this unexpected interval, most of the nominees survived a careful evaluation run by several public interest groups; the major press also recognized most of them as well-qualified candidates.
To sit in the most important council in the country, however, these nominees have to pass the thorny road of legislative confirmation. This process deserves our close attention, because what is at stake is the nation's constitutional democracy.
Under the Constitution, the Grand Justices are nominated and, upon confirmation of the legislature, appointed by the president. As the major check on the sweeping power of judicial review, this screening process is intrinsically political.
It is through the acts of our political agents that we the people entrust the authority of constitutional adjudication to the judicial statesmen and stateswomen, who in turn shall decide the meaning of the Constitution for us. In this regard, statutory qualifications may help us insure the intelligence and competence of would-be justices, but they do not mark the end of our political scrutiny; more often than not, the nominees' personalities, judicial philosophies and/or political ideologies also need to be considered so as to insure their worthiness of our trust.
Conceivably, a specific selection can be very controversial, as the Bork hearings in the US taught us. (In 1987, then president Ronald Reagan nominated Robert Bork to be an associate justice of the Supreme Court. Bork was rejected by the Senate largely due to his controversial views of conservative originalism.)
Deliberative politics, however, should never be confused with barbaric partisan politics. In deli-berative politics, public-spirited men and women engage in politics to pursue the common good. While there are reasonable disagreements on many legal-political issues, deliberative participants would live up to the civic virtue of mutual respect with due diligence.
In barbaric partisan politics, self-interested politicians will seek their short-term victory at any cost; partisan interests simply outweigh human dignity and political solidarity. It is very important to distinguish public deliberation from partisan competition, especially in the context of judicial selection. Deliberative discourse and public participation may democratize the most elitist branch of our government and enhance the legitimacy of judicial review.
Partisan-motivated selection, by contrast, will foster partisanship within the bench and ultimately undermine the independence of the judiciary.
Will our legislators act in good faith when reviewing the nominations? In view of their records and current state of mind, I wish we could still make such presump-tion. Above all, the timing of the confirmation process itself poses serious challenges. With the presidential election approaching, there is dimming hope for rational deliberation. Although the black-list scheme has been substituted for the original quota proposal, it is simply too tempting for the pan-blue camp to forgo the chance to humiliate Chen.
The conflict of interests is so intense that eloquent rhetoric from the opposition might disguise their political tactics. In response to the rivals' calculations, the pan-green coalition might also seek every resource to secure Chen's choices, irrespective of the honest critique of some nominees raised by the public.
Whereas Americans seek to avoid selecting Supreme Court justices in an election year, we Taiwanese have to assume the risk of excessive confrontation by following the party leaders' flutes.
Partisan manipulations of the confirmation process can be restricted provided that we have healthy institutions or a mature constitutional culture. Unfortunately, neither condition exists in our young democracy.
From a comparative perspective, the hearing-confirmation procedure is quite vulnerable to partisan influence because the legislature's Judiciary Committee has neither authority nor capability to provide meaningful preview. Although party leaders claim that the making of their blacklist is based on polls of legal professionals and that no disciplinary measure will be used, there is insufficient institutional or procedural guarantee to hold their good faith intact.
The situation is worsened by the lack of norms for prudent hearings; many legislators simply don't know what they can ask and what they should not. Some legislators reportedly plan to target nominees' private lives during the hearing, even though it has nothing to do with his or her integrity. Other legislators plan to ask questions regarding pending cases or specific constitutional issues, oblivious to the impropriety of such questions.
An even more worrisome possibility is the exploitation of the national identity controversy. Regardless of the fact that the nomination as a whole is rather balanced and that no nominees can be fairly labeled as fundamentalists on the controversy, some legislators simply couldn't tolerate a moderate, pragmatic reading of the Constitution that would implicate Taiwan's sovereignty.
Concededly, a justice's perspective on this fundamental issue may well affect his/her positions on certain cases. However, whether a nominee is pro-independence or pro-unification has nothing to do with his/her constitutional fidelity. Legislators should acknowledge and respect the reasonable disagreements on this issue.
If the hearing-confirmation procedure is diverted into the battle of identity politics, into a battle that would divide us rather than unite us, then not only the council, but the people will suffer from vicious political exclusion, a serious impediment to the fulfillment of just democracy.
It is unrealistic to expect the elimination of partisan considerations in the judicial selection process; students of American judicial politics also recognize that partisanship is a critical factor in their system. We the virtuous people, however, should not merely sit by and watch politicians hijacking the council. Only through rational deliberations can we do justice to our future justices.
To save the council and the future of our constitutional democracy from invidious partisan manipulations, we must pay attention to the upcoming legislative procedure and send a clear message to our political servants that they will definitely be held accountable in the near future. Active public participation and strong media oversight are also part of the solution. We shall learn that the more vigilant we are, the fewer power abuses we will suffer.
Su Yen-tu is a visiting researcher at Harvard Law School.
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