On July 12, accompanied by the ministers Yasmín Esquivel Mossa and Loretta Ortiz Ahlf, the minister Javier Laynez Potisek went to the Chamber of Deputies to receive, on behalf of the Plenary of the Supreme Court of Justice of the Nation, the conclusions of a series of talks organized within the Morena parliamentary group around the proposal of President Andrés Manuel López Obrador that federal ministers, magistrates and judges be appointed by popular vote.
In front of the two ministers and the minister, the president of the Political Coordination Board, the deputy of Morena Ignacio Mier Velazco, expressed that the document delivered sought to cause “discussion, democratic reflection, with no other interest than really guaranteeing that we live in a democratic country that guarantees equal justice for all”.
Undoubtedly, the desire to ensure equal access to justice is not exclusive to Morena: it is a social claim with a long tradition. We Mexicans know that if the hazards of life take us to court, we cannot be sure that the service we receive is the same as that of our counterpart. Rather, the entrenched perception is that there is a justice for the rich and “connected” people and another for the rest of the mortals.
In fact, reversing this well-grounded perception in reality has been the intention of many policies undertaken both at the federal and local levels, as is the case of the recent judicial reform promoted by Arturo Zaldívar, which contemplated, among other things, improving the attention received by the most disadvantaged populations by federal public defenders, through their training, professionalization and selection based on objective and meritocratic criteria.
For this reason, in addition to being consistent with López Obrador’s campaign slogan (“For the good of all, the poor first”), it is laudable that Morena wants to undertake a reform that can ensure equal access to justice. The question is whether or not substantially modifying the process for appointing federal judges, so that the popular vote intervenes, will help to achieve this objective.
The way to appoint ministers is not the best, but…
We have already expressed in this space our criticisms of the current method of appointing Supreme Court justices, due to its lack of transparency and spaces for citizen participation, and its ‘rush’. But the worst thing is that it does not guarantee that the most suitable people for the position are appointed, but often those closest to the Executive Branch, which can call into question whether its decisions are truly independent and impartial.
Can the popular vote improve these aspects and, incidentally, guarantee a more equal justice? International experiences do not provide any positive evidence. According to Lawrence Friedman, who has analyzed the use of the popular vote to appoint adjudicators in various entities in the United States, this method of appointment has not raised the profile of the appointees or generated genuine interest among voters in the process. .
Now, does the fact that judging persons are directly elected by the citizens change their way of making decisions in any way? The answer seems to be… yes. Research by Stephanie Lindquist indicates that judges appointed at the polls invalidate more laws passed by the Legislature or change established precedents more often than traditional appointees.
However, if what we want to know is whether the decisions of both types of judges more or less favor economic interest groups, the evidence is more difficult to obtain, but there are perceptions in this regard.
A 2013 Justice at Stake survey indicated that 87% of registered voters believed that lobbyists’ campaign advertising purchases of judicial candidates, or contributions to their campaigns, had some or much influence on the decisions of the judges. In other words, although it seems that the judges who are subject to popular election may be more independent in the face of political power, in the face of economic power such independence would be at risk.
Any political actor, and even more so the members of Morena, should be concerned about the fact that the proposed reform could increase the risk of dependency of aspiring ministers and other judges in relation to economic interests. And it is that instead of reducing the existing gap in access to justice –an objective of the reform proposal, representative Mier tells us–, it would rather widen it.
It is convenient for at least one person that the ministers go through the polls…
So, if the general public and the most vulnerable in particular do not agree that ministers be appointed by popular vote, why does the President of the Republic propose this method? Because it suits his party? No. As we already outlined, this doesn’t seem to suit Morena either. But there are other factors. It should be remembered that the current appointment method allows the Executive to propose a shortlist of candidates for the position, with like-minded people, as has been the case with some recent appointments.
Given that Morena, in view of the majority of the surveys, has high expectations of retaining the Presidency in 2024, why would López Obrador want to modify the process for appointing ministers, thus leaving the next president without the possibility of influencing directly in the composition of the Court?
To understand this proposal, then, one must carefully read the political context, as the academic Pablo Mijangos recently pointed out, in an event organized by the Law History Commission of the Mexican Bar Association, coordinated by Rafael Estrada Michel.
Mijangos considered that, even if he comes from Morena, it is likely that the next president will be weaker than López Obrador, who will presumably continue to make the main decisions regarding the party’s candidacies, including the hypothetical ones for ministers of the Supreme Court. . So, modifying the appointment system would be part of a strategy by López Obrador to “continue to exert direct influence over the Judiciary and the highest court.”
Conclusion: the reform proposed by López Obrador does not seem to respond to the ideological priorities of his party, nor will it favor his successor. Only he could be useful.
Morena must be careful what she wishes for
It is worth analyzing the experience of Bolivia, the only country where the judges of the highest courts have been appointed by popular vote since the 2009 reform, which was promoted by then-President Evo Morales.
One of the problems that were detected in the Andean country is that the elections to designate judges have little participation compared to other electoral processes, and that the majority of the votes are null or blank. In addition, the people who won the elections have not been the most suitable and their appointment has been highly politicized, according to a report by the United Nations Special Rapporteurship on the independence of magistrates and lawyers. Finally, the judicial backlog and corruption within justice institutions have not diminished.
If we consider that years later the Bolivian government itself recognized that this designation system did not have the expected results, and that it was necessary to reform it again, as the Report on the State of Justice in Bolivia 2022 describes very well, this experience is not very encouraging.
Setback for judges and magistrates
Nor has there been much discussion about the fact that the reform proposed by López Obrador would not only imply modifying the appointment process of the people who make up our highest court, but also that of federal magistrates and judges, which, until now, it is based on opposition competitions.
Undoubtedly, the current process is perfectible, as we have already pointed out. But it has the great advantage that it is based on knowledge and meritocratic evaluations, as recommended by the UN Special Rapporteurship. Therefore, if the initiative passes, we would be facing a clear setback in judicial efficiency and independence.
In conclusion, although López Obrador’s proposal to appoint federal judges by popular vote does not suit anyone, not even Morena (or perhaps a single Morenista), at least it has done something good: put two urgent matters on the table. increasingly large, which unfortunately were not considered in the 2021 judicial reform.
First, if we want to strengthen judicial independence, we must indeed seek to reform the process for appointing ministers, but not so that it becomes more politicized, but rather, so that it becomes as depoliticized as possible and based on much more rigorous analysis. and transparency of the profiles, trajectories, knowledge and skills of the applicants.
Second, if we want to guarantee a more egalitarian justice, we must reflect on the way to strengthen state justice, modernizing it, dedicating more resources to it, depoliticizing the selection processes of local magistrates and professionalizing judicial personnel at all levels.
We hope that these issues will be the subject of a real and serious discussion next year, with a true open parliament exercise, where all voices can be heard and the issues that really matter are discussed.
*Laurence Pantin (@lpantin) is coordinator of the Transparency in Justice program of México Evalúa. Thanks for the review by Pablo Garcia.
