Names in the frame circulate as Supreme Court nomination deadline passes

The Casa Rosada did not meet last Wednesday’s deadline (within the timeframe established by decree by then-president Néstor Kirchner in 2003) for President Alberto Fernández to announce the name of his candidate to occupy the Supreme Court vacancy left by the resignation of Elena Highton de Nolasco, but with no apparent consequences. 

No new developments are expected imminently and the Casa Rosada will be kicking the nomination – which must be agreed with the rest of Frente de Todos, external sectors and the Senate – down the line.

"Alberto decides that," a leader close to the president told Perfil, seeking to reinforce the idea that the vacancy will be resolved as indicated by the text of the norm, that "naming the Court magistrates is a presidential attribute."

Nevertheless, since Highton de Nolasco announced her departure in late October, there were more than a few options to propose, warranting discussions both within and beyond Balcarce 50. Within a day-to-day agenda marked by the economy and an urgent haste to reach an agreement with the International Monetary Fund, all that will not find much room for now. 

Decree 222/2003, signed by the then-president Néstor Kirchner, indicates that "in a maximum period of 30 days there will be published in the Official Gazette (...) the name and curriculum vitae of the person or persons in consideration to cover the vacancy." But the text of the norm does not hold the government responsible in any way in the event of non-compliance.

The shortlist

Following Highton de Nolasco’s announcement, various names started to circulate in government circles, all of them women.

Apart from the requirement that if the vacated post was occupied by a woman, it must be covered by another, Decree 222/2003 stipulates that the candidacy "should permit the diversities of gender, specialisation and regional origin to be reflected within the framework of the ideal of representing a federal country." 

To that end, among the speculation, first in line is Marisa Herrera, a feminist lawyer, professor and CONICET researcher. She also belonged to the Beraldi Commission, which was set up by the government to debate judicial reform. Her entourage has maintained a strict silence as to whether or not there have been contacts with the Casa Rosada regarding the vacancy.

From the same province as Cabinet Chief Juan Manzur, Claudia Sbdar is another possible candidate – she is another lawyer belonging to the commission for judicial reform and serves as chief justice of the Tucumán Supreme Court. 

Pushing her candidacy would imply negotiating with Manzur, who needs to evaluate whether his political interests in his own provincial territory are affected or not, bearing in mind his links with the lieutenant-governor filling in as governor, Osvaldo Jaldo, who, despite being amicable enough in recent weeks, clashed with him earlier.

The president must equally evaluate another possible candidate, 76-year-old lawyer Hilda Kogan, who was the first woman to become a Buenos Aires provincial supreme court justice.

Her nomination would oblige the president to agree terms with Governor Axel Kicillof, who already has three vacancies to fill in his provincial supreme court.

And should the proposal of María del Carmen Battaini advance, it would also become necessary to establish channels of dialogue between the Casa Rosada and Tierra del Fuego Governor Gustavo Mellela, who is in any event a man close to the president. 

Battaini is the deputy chief justice of the Tierra del Fuego Supreme Court and also heads the nationwide Federal Court Board. In the Comodoro Py federal courthouse, two judges favoured by the government have been praising her work with ringing endorsements.

Requests

Earlier this week, before the deadline for Supreme Court nominations expired, influential human rights organisations as the Centro de Estudios Legales y Sociales (Centre for Legal and Social Studies, CELS) and Amnesty International sent the president a note, describing the profile which the new justice should have.

"We request that the appointment of a woman with a proven commitment to the defence of human rights and with a gender perspective be promoted without delay," they indicated, warning: "The appointment of a male to this role or the perpetuation of the current vacancy would presume an extremely serious situation." 

Beyond the consensus required for the proposal of any of the above, in the Casa Rosada they realise that the process is complex and that any confirmation won’t be easy – a two-thirds vote in the Senate is necessary for the proposal to prosper.