The necessary integration of the Supreme Court

I apologize to the readers for starting with a phrase, but it doesn’t hurt – from time to time – to be reminded of it The Supreme Court is the power of the state. Its integration, both qualitative and quantitative, is as such a matter of indisputable institutional interest not only for the forum, but for the whole society. Finally, and this is another truth of the same caliber, the judgments of the Court, or rather their effects, directly or indirectly affect us all. For these reasons, the appointment of its members raises expectations that can turn into fears, especially when the arrival of a new judge can tilt the majority of the Court in one direction or another.

These feelings are amplified today and it is no wonder. Our Supreme Court consists of five judges – which is not many – and for three years now one of its seats has been vacant after retirement. Dr. Highton de Nolascostill in the month of November 2021. Added to this is that Dr. Juan Carlos Maqueda He will retire at the end of December this year as he turns 75 and has not applied for a new deal to remain in office for another five years as required by Article 75, incl. 4 of the Constitution.

Willing to tackle the problem, neither slowly nor lazily, the executive in the first months of its mandate sent to the Senate the specifications of two candidates to fill the current vacancy and the one that will appear in a few months. I have to point out a curiosity here. Cardinal Richelieu, in a line usually attributed to him, would say that trying to please everyone is the best way to destroy a state. If he did not say it, the idea fits perfectly with the personality of the famous minister Louis XIII.

President Milei is undoubtedly clear on this, although I have never heard him quote the cardinal, because if there is anything that has been suggested since the dawn of the election campaign, it is a very clear dividing line. On one side are those who are unconditionally willing to follow him. Everyone else stays in the second one. Milei must be one of the few politicians who prides himself on not being one and repeats it everywhere, although in his own way he is. No one sits in the Casa Rosada without doing politics, no matter how extravagant and unusual the style used in it may be.. Borges said he felt sorry for politicians because they always wanted to please everyone. Our current president is on the opposite end, by the way. Its transcendent mission – as it loudly proclaims – is to achieve the goal of zero deficit, and that cannot be achieved with a smile.

But there is one issue, not a minor one, in which Javier Milei has not been true to his well-studied persona. By choosing two candidates for the Supreme Court, he tried to adapt to the most distant positions in the political spectrum and subsequently elected two diametrically opposed people to fill the vacancies. One of them is an accredited professor of constitutional law, of impeccable academic record. The latter has no credentials other than being a a veteran federal judgewho became famous not precisely for the essence of his sentences, but for not dictating them.

Richelieu, or the maxim attributed to him, again proves his point. So far, this dichotomy has not yielded good results in the selection of candidates. A good mix was not achieved with one of lime and the other of sand. Milei, with a certain naivety, believed that with two candidates who – he draws with a very thick pencil – represent very different interests, he would solve the problem and He betrayed his own dogma and wanted to please everyone. But the problem is much more complex and cannot be solved by placing a judge on each side. Yet, no matter how complex the plot is, the reason is very simple.

I’ve never been good at math, but what little I know is enough to make me realize that in a court of five judges, three is a majority, and that’s what really worries those who support Ariel Lijo. If both nominees are appointed and the court is not expanded, they will very likely be in the minority, and that is an uncomfortable, even alarming, position for them.

Therefore, those who are veterans in this art, who do not learn from books, could certainly foresee what is happening now. Nominations are blocked in the Senatewho chose a silence that grows louder every day. Where the agreements of each of the candidates should be discussed with a vehemence commensurate with the case, there is a complete calm that cannot mask the storm raging below. I would venture to say that it probably portends. Some dark clouds are already moving in.

What is heard are the voices of those who promote a increasing the number of court judges. Not all of them should be ill-qualified, by the way, there are certainly well-intentioned ones, but there is no doubt that many of them have the intention of correcting this disturbing numerical disparity to their advantage.

And here Javier Milei returns as Javier Milei: he is adamant, but not without reason. He has full evidence before his eyes that his candidates are in trouble, not because of their merits or demerits, which have receded into the background at this point, but because mathematics, like economics, is rigid. However, He continues to await the Senate’s decision, even though he has provided ample evidence that he has no interest in it.. The contestants sit and each wait for the other to make the first move.

The position of the executive can undoubtedly be the subject of numerous analyzes from a political point of view, but its expectation is completely legitimate from a constitutional point of view. Regardless of whether or not he got his nominees right—a judgment that everyone will make personally—the truth is that the president has done his duty in time to fill the two vacancies on the court, and now he hopes the Senate will help yours in the process.

The attitude of the Senate is different. In this case, your constitutional obligation is indicated by Article 99 inc. 4 of the Constitution. The conciliation commission must issue its opinion “as soon as possible, with a recommendation to grant or reject the requests for consent requested by the executive branch” (Article 123 of the Rules of the Senate Chamber) and the plenary chamber must give agreement or reject the proposals of the executive branch.

It is true that the two-thirds majority established in Article 99, incl. 4, the granting of agreements for judges of the Supreme Court is a very high bar, which was imposed at the time by the 1994 reform to limit the power of Carlos Menen, who had already substantially expanded the number of judges of the court, bringing it to nine members. It is well known that the political circumstances of the moment are generally a poor recipe for inclusion in the Constitution because the long future must rule, the longer the better. But this does not justify the stagnation of specifications. If he does not obtain this majority, the candidate(s) must be rejected and the Executive Branch will have to choose another.

Instead, the Senate opted for silence, which, as I said, is far from silent. On the contrary, the message the executive is getting is that its nominees could pass the test, but the court must be expanded as a condition of that. This negotiation does not seem legitimate to me.

Although I am one of those who believe that five members is a very limited number for a Court of Auditors, the chosen opportunity for expansion, born of political shrewdness, which is not always a good adviser, tends to immediately force the President’s hand. in which the court is on the verge of a minimum number to function, where any disagreement among its members will deprive it of a majority to decide and it will be necessary to call in co-judges, leading to a predictable delay in deciding the cases that need to be dealt with.

The decision to structurally change the court is an institutional step too important to become a bargaining chip in the political negotiation of deals for new judges. It needs to be meditated upon and received in an oxygenated environment and should not be induced by force. The expansion or reduction of the number of judges of the court must be a decision arising from a considered study of the requirements of the country and society.after effective verification of his actual need.

There is no doubt that this is a political tool of the Congress. This was established by the reform of 1860, when it amended the original text of 1853, which stipulated that the court would have nine judges and two prosecutors. Miter and the voters of 1860, imitating the United States Constitution, removed this constitutional power and vested it in Congress. It is curious that the Constitution sets out the requirements for the judges of the court (Article 111), but says nothing about the number of its judges.

While this is theoretically advantageous because it provides more flexibility in adjusting the number without the rigidity imposed by calling a constituent convention, it is no less true that the abuse of this power implicitly granted to Congress by Article 108 presents the Court. in the shifting sands of guerrilla warfare.

Americans already experienced this shortly after the Civil War. Andrew Johnson, Lincoln’s successor, had such a bad relationship with Congress that when John Catron died in 1865, the number of justices on the court was reduced from ten to nine, and it was stipulated that if a new vacancy occurred, it would be reduced to eight, so that he prevented Johnson from appointing a successor at all costs. But they learned their lesson, and from 1869 the number of judges at the court remained at nine. Only FD Roosevelt wanted to increase the number of justices to fifteen to prevent the court from ruling against the New Deal, and despite the enormous power he wielded at the time, he failed miserably.

In Argentina, we have not yet learned this lesson, and every time someone is not satisfied with the division of their majority and minority, it is said that they need to remove one of their judges or increase their number.

Now, in the perfect guise of gender politics, there is a new opportunity to do so. Of course There is no doubt that the Court must have a plural composition, not only in terms of gender, but also in terms of geographical and ideological distribution.Without being a legislative assembly, it seems reasonable that its composition should be as representative as possible of society as a whole. However, this is not a valid excuse for making membership growth a necessary condition for filling existing vacancies or those that arise immediately.

In summary, I believe that the Senate must at this time fulfill the constitutional duties in charge of it and approve or reject the specifications of the nominees that it has studied. However, the enlargement of the Court using it as a negotiating tool should not, however, make it a condition of the danger that the Court, if these agreements are not granted, will be left with a composition so limited that it could ultimately jeopardize its good and normal operation.