Towards a supremo’s court

The initial reaction to the ‘Cryptogate’ scandal was that with this degree of image damage, President Javier Milei could not possibly add insult to injury by decreeing the controversial federal judge Ariel Lijo into the Supreme Court but the libertarian lion seems to have turned this logic on its head – this was precisely the right time for a head-on collision with the separation of powers as a distraction from all the dangerous questions accumulating both at home and abroad about his rash (?) Saint Valentine’s Day crypto promo. So far this strategy seems to be working and critics of the Supreme Court stunt should bear this in mind – however excellent their arguments, nobody should forget this scandal and bypass it by moving into a constitutional debate.

With this caveat, both the presidential Supreme Court nominees, Lijo and Manuel García-Mansilla, present problems. These are rather simpler in the latter case. García-Mansilla is ideologically aligned with the President in areas like an extreme defence of the free market and a pro-life stance on abortion but this would hardly be the first time in human history that an elected president has favoured somebody closer to his thinking so no serious objections there. This legal scholar has an expert knowledge of constitutional law, which should be a prime criterion in picking a Supreme Court justice, although rarely given importance. The problem with García Mansilla is that in his Senate hearing, he said, reflecting the integrity shown until now, that he would not accept being appointed by decree instead of the upper house approval constitutionally mandated for normal times. So what now?

It is a sad comment on modern politics that a dodgy judge like Lijo has always been much closer to obtaining Senate approval in the past year than the honest scholar. So close as to keep hopes of his clinching the requisite two-thirds majority alive until just three days before the end of parliamentary recess (the only period in which a decree could be constitutionally justified). The thinking here was that a compliant justice could offer something for everybody – rubber-stamping all Milei’s structural reforms while granting ex-president Cristina Fernández de Kirchner (the key to 34 of the 72 senators) impunity in her numerous corruption cases, the latter a price the President seems willing to pay in order to transform Argentina. But for one reason or another these political calculations failed to click.

Who is Ariel Lijo and why is everybody saying such terrible things about him? In almost two decades as a federal judge, Lijo has been denounced no less than 32 times before the Council of Magistrates. Lijo’s argument is that nothing ever came of this and at least theoretically these denunciations could come from those jealous of a perfect judge. But even more damning is his record trying corruption. Of 89 such cases landing in his courtroom, only 14 have ever been sent to trial (good luck to them there) while in almost a third (26) the file has not even been touched – the remaining 49 languish in some kind of investigative limbo. The constitutional law expertise disregarded in García-Mansilla’s case works against Lijo with scant knowledge in his criminal law experience. No repudiation of such a judge might seem too harsh but in fairness, it should be said that some accusations confuse him with his brother Alfredo ‘Freddy’ Lijo, an even shadier judicial operator more directly linked to lucrative moves. Lijo might not be his brother’s keeper but nor do apples fall far from the tree.

It is hard to see where all this is heading once the ordinary sessions of Congress resume next week, with normal institutional or procedural logic offering little guide. Could Milei be imitating Donald Trump yet again by playing hardball ahead of negotiating? Throughout the past year of haggling, Cristina Fernández de Kirchner offered the alternative of an expanded Supreme Court including both nominees plus a batch of female judges of her choosing to ensure gender and political balance, as well as filling a significant percentage of the hundreds of vacant benches nationwide. But having just seen La Plata federal judge Alejo Ramos Padilla nix his bid to privatise Banco Nación, Milei might not find too much to negotiate here.

President Milei’s state of the nation address to open the ordinary sessions tonight is unlikely to elude the issues of Cryptogate and the Supreme Court, given an expected duration of over two hours and his confrontational character. We can only wait and see what he says.