By

Carol Ajie

On October 1, 1924, William Rehnquist was born in Wisconsin. He was five years older than Aka, the titan, our NBA hero who co-incidentally passed on October 1, 2005, ten weeks to his 75th birthday when the Nigerian Bar Association (NBA) would have named our national secretariat in Victoria Island Lagos, Alao Aka Bashorun’s House. Honour, we must give to the Great one, only it has to precede his birthday in December. The burial dates are November 10 and 11, 2005 says his family.

Unlike Aka, William Rehnquist the former Chief Justice of the United States of America was a conservative and voted against affirmative action. Unlike Aka, Rehnquist died of a terminal disease thyroid cancer at the age of 80; Aka suffered amnesia in his last years which is not a terminal disease. But William Rehnquist had a unique career like Aka only on different pedestals. Rehnquist had practised law for sixteen years before he was appointed in 1969 as an Assistant Attorney General by President Richard Nixon. Two years later, two Justices of the Supreme Court of USA retired due to terminal diseases; they are Justices Hugo Black and John Marshall Harlan. Richard Nixon deemed it fit to appoint Lewis Powell and William Rehnquist respectively to replace Black and Harlan in 1971. Fourteen years later, following the retirement of Chief Justice Warren Burger, President Ronald Reagan nominated William H. Rehnquist as the Lord Chief Justice of USA; a seat he occupied till September 2005 when he gave up the ghost.

President George W. Bush in his first Supreme Court nomination in July 2005 chose John Roberts aged 50 years who was then a Justice of the US Court of Appeal in the District of Columbia.
On his being cleared by the US Senate, John Roberts was appointed as the 17th Chief Justice of the United States of America on September 30, 2005 over and above eight other Justices of the Supreme Court, all of them his senior by far. Just think of what would happen, if upon the retirement of the Honourable Justice Mohammed Lawal Uwais CJN in June 2006, a replacement is found in one of the youngest entrants into the Supreme Court Bench, the NBA would protest amidst huge public outcry.

It is historic that on Monday, October 3, 2005, Chief Justice John Roberts presided at his first Supreme Court hearing when the Court was invited to determine the constitutionality or otherwise of Death with Dignity Act of 1994 which allows Doctors in Oregon to prescribe but not administer life-ending medications to terminally ill patients who request them. It is an Oregon law and if the Supreme Court gives its nod, California, Vermont and other States may consider similar laws; hence the strong indication from the Supreme Court session, signal a vote against it. President George W. Bush was briefly at the court session on Monday, October 3 and his administration protests assisted suicide laws.

Yet another judicial legacy George W. Bush would want to leave is coming on the heels of the retirement of the first female Justice of the Supreme Court, Sandra Day Connor, after 24 years of dedicated service as a liberal centrist in the Supreme Court. I had in THISDAY Law publication of Tuesday July 5, 2005 paid a tribute to Sandra Day Connor, 75. She gave notice of her resignation on July 1, 2005 barely three weeks after the Honourable Justice Aloma Muktar made history as the first woman to be appointed to the Supreme Court of Nigeria and she would remain on the US Supreme Court Bench until a successor is found very likely before the end of the fall term only just began.

Sandra Day Connor voted for affirmative action and viewed abortion as neither unconstitutional nor questionable if the health of the woman is in danger. Her retirement leaves Justice Ruth Bader Ginsburg as the only other woman among eight men and we did in the media and on the web page urge President Bush to pick one of the most eminently qualified women to take Sandra’s place. And that is what Mr. President seems to be doing when on Monday, October 3, 2005, he nominated Ms Harriet Miers.

Harriet Miers is 60 years of age, born in Dallas, Texas, single, no children, an unrelenting workaholic - the typical full time career woman without pretence for domestic liabilities; she is a White House Counsel. Before then, she had been the President of Texas Bar Association. Whilst in private practice, she headed one of the largest law firms in Texas, Locke Lidell and Sapp and represented Microsoft and Disney as a trial litigator. George Bush was her client and she had donated to his presidential campaign as she did to Al Gore’s. Her critics hammer on her lack of judicial experience but her loyalty to George Bush remains her greatest asset.

One unkind commentator, somewhat a reckless talker, said of her: "Harriet Miers is the first person without experience as a Judge to be nominated for the Supreme Court since President Richard Nixon tapped William Rehnquist and Lewis Powell in 1971. The burden of proof, if you will, is squarely upon Miers to demonstrate how and why she is not just another political hack who has been given a plum assignment as a reward for many years of service to the President both in and out of office."

William Kristol, the Editor of The Weekly Standard, Washington said he was disappointed, depressed and demoralized because he had expected Bush to nominate a woman with a visible and a distinguishable constitutional track record like Maura Corrigan, Alice Batchelder, Edith Jones, Priscilla Owen or Janice Rogers Brown. Even so CNN Gallup poll result shows that the American women back Miers not just for gender, but emphatically for competence. Only time will tell. Bush has however praised Miers as the best person he could find with strength of character and intellect. Mr. President enthused: "I don’t want someone to go on the bench to try to supplant the legislative process. I am interested in people that will be strict constructionist and Harriet Miers shares that philosophy."

THE NBA POSITION/CONNECTION:

At the National Executive Committee (NEC) meeting of NBA on Thursday, July 28, 2005, a resolution was passed urging for the direct appointment of practice lawyers into the Supreme Court and the Court of Appeal to breathe as it were, life into sections 231(2)&(3) and 238(2) & (3) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 hereby reproduced ad verbum. First let us rehearse s.231 (2) of the CFRN 1999. It says:
"The appointment of a person to the office of a Justice of the Supreme Court shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate."
s.231 (3) provides that:
"A person shall not be qualified to hold the office of the Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years."
s.238(2) states that:
"The appointment of a person to the office of a Justice of the Court of Appeal shall be made by the President on the recommendation of the National Judicial Council."
s.238(3) says:
"A person shall not be qualified to hold the office of a Justice of the Court of Appeal unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than twelve years."

We have probably lost count of the number of lawyers who are amply qualified for recommendation by the NJC to the President of the Federal Republic of Nigeria for appointment into these appellate courts. What you need do if you are an interested candidate, send your curriculum vitae to the National Secretariat of the Nigerian Bar Association for screening by NEC-NBA and subsequent recommendation to the National Judicial Council (NJC) for those who pass the test - don’t forget NBA has nominees on the Council and President Olusegun Obasanjo may well make that deserving appointment or those deserving appointments needed to keep the appellate courts savvy. And that would be a legacy for the NBA leadership under sprightly Prince Lanke Odogiyon. Just as Aka would press into effect of every resolution of the NBA with the deep conviction and vigour of a Giant considering that paper rhetoric, not enough!

• Carol Ajie, former General Secretary, NBA Lagos Branch; Executive Secretary, Rules Watch; Principal Counsel C.N. Ajie & CO; Member, American Bar Association; Member Nigerian-American Chamber of Commerce; Member, IBA and the Chartered Institute of Arbitrators, UK.