Argentina has a problem with its Supreme Court. The country’s main court, head of one of the three branches of the state, is being shaken by fratricidal disputes among its members, a conflicting choice of the new president of the court and an unexpected resignation that left it with just four members. The Argentine Supreme Court has been treated with discredit for decades. From the “automatic majority” of the 1990s, when sentences were drafted to the taste of the shift government, it underwent an auspicious reform during Kirchnerism in the early 2000s – but the political noise since then has sunk its reputation again.
The composition of the Supreme Court is an extremely sensitive issue in Argentina, because there, sooner or later, cases of corruption at the highest levels of government end. That’s why politicians pay close attention to internal divisions. On the last 23rd, the court had already been in the news for a hasty and succinct succession in its command. That day, Judge Horacio Rosatti replaced Carlos Rosenkrantz with three votes: that of his predecessor, that of another judge – Juan Carlos Maqueda – and his own. The other two court judges, Ricardo Lorenzetti and Elena Highton de Nolasco, signaled their disagreement by absenting themselves from the vote. The succession crisis was still unresolved when Highton de Nolasco resigned without warning, leaving the floor with only four members. The case of the only woman in the court was a particular one: she had passed the age of 75, which the Constitution imposes as a limit on Supreme Court justices, and she was holding her position thanks to a special authorization.
When Highton de Nolasco packed his bags, the newspaper bugle, Argentina’s largest circulation, headlined that the government had lost “its only vote in the Court”. President Alberto Fernández then asked ironically to whom “the remaining four votes” belonged, in an institution that, it is supposed, should be independent of politics. Lorenzetti, an ally of Highton de Nolasco and president of the Court between 2007 and 2018, gave a series of interviews that did not hide the magnitude of the crisis: he denounced that the court was being harmed by internal “revelations”. In other words, if it is normal for judges to “speak for their sentences”, leaks from within the court itself were becoming “a problem that creates confusion” in society. Lorenzetti doesn’t just talk for the sake of talking: two weeks ago, he tried to regain the presidency, which, according to his reading, was snatched from him three years ago by the government of Mauricio Macri. When it became clear that he couldn’t block Rosatti, he simply didn’t vote.
“The Court is split”, warns constitutionalist Andrés Gil Domínguez, “and this can affect its functioning or make it more complex”. “This Court is very malleable,” adds a federal judge who prefers not to be identified. “It’s been like this until now. Rosenkrantz is clearly opposed [ao kirchnerismo], the others don’t”, adds this source. Marcelo Galle, president of the Association of Magistrates, prefers to speak of “differences” rather than “fracture”. “In an associated body there is a diversity of opinions, and its members have positions and defend them”, he says.
The history of the Argentine Court since the return to democracy in 1983 is one of permanent tension between independence and submission to political power. In the 1990s, then-president Carlos Menem increased the number of judges from five to nine, forming what, ironically, was called an “automatic majority” of five against four. In 2002, with the country plunged into the most serious economic crisis in its history, Congress approved the impeachment of six of the nine members of that court handed over to menemism. A year later, President Néstor Kirchner established by law a more participatory and transparent election system for Supreme Court justices. In 2006, the number was again reduced to five ministers. However, the addictions have returned, and tensions between judges and political power are again at the surface.
To the ambitions and disputes among the judges is now added the need to choose a successor to Highton de Nolasco. The Government is a month and a half away from crucial legislative elections, in which it could lose control of the Senate. The imminent defeat stretched the ropes in the ruling Peronist coalition. This is no time for compromise. “Within the President’s leeway, we all assume it will appear to be a woman,” says Galle of the Magistrates’ Association. There is a consensus, however, that the new name will take time to emerge. Gil Domínguez says that “with the political division that exists, it is difficult to think of a replacement in the short term”. “Either they find a candidate with a lot of consensus, or perhaps the option to enlarge the Court will arise”, he argues.
The increase in the number of ministers is the fuel for long disputes. Argentina already had a court of nine, another of seven and the current one of five. “The one with seven members worked very well, and with five as well. Menemism expanded it to nine and we don’t have a good memory, because it was the automatic majority court, it was a scandal”, recalls constitutionalist Jorge Vanosi. “It is the smallest Supreme Court in Latin America together with Uruguay. There are factors related to ideological plurality, gender diversity, which the expansion would make it possible to solve”, opines Gil Domínguez.
Vice President Cristina Fernández de Kirchner defends the idea of increasing the number of members of the Court, which she sees as an enemy of the Government. In a letter published days after the government’s defeat in last September’s primary elections, she accused the judges of Argentina’s highest court of “condition or extort” the executive to complicate economic management and pursue judicial harassment against government leaders. The Court currently has on its agenda the analysis of 17 appeals filed by Fernández de Kirchner in three cases in which she is accused of corruption. The changes in the Court, however, are conditioned by Congress, where the Government does not have the necessary votes to move forward. The changes the vice president is looking forward to will still have to wait.
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