Supreme Courts are caught, not tort

If the idea of packing the Supreme Court goes back at least 85 years to FDR in the United States, the bill of Río Negro senator and former governor Alberto Weretilneck (I really need my Google mojo working for that surname!) presented last Monday takes it into a new dimension by not just increasing the current number of four justices but squaring it to 16. Not the only reform bill on the table in the counter-offensive against the Supreme Court – there are at least three others proposing 15, nine and even five (but with gender balance) justices – yet this one is reportedly favoured by Vice-President Cristina Fernández de Kirchner, perhaps because it offers the greatest scope for packing with the highest number of new justices.

There were times when her whims moved in the opposite direction (downsizing both the Supreme Court and the Council of Magistrates in 2006 when senatorial first lady) but always with the underlying aim of subjugating the judiciary to the elected government. This constant personal obsession has led to judicial manipulation being almost totally identified with Kirchnerism in the public mind as a spearhead of the drives to demonise the self-styled “successful lawyer.” On that point this column’s mission of comparing past and present on the basis of 34 years of Buenos Aires Herald newsroom experience might supply some useful perspective by showing that such phobias against independent justice are far from being a uniquely Kirchnerite vice.

This latest drive to pack the Supreme Court instantly revives memories of Carlos Menem doing exactly that 32 Aprils ago – expanding the Supreme Court from five to nine justices (only for CFK to reverse that 16 years later with identical authoritarian aims, thus showing that opposite methods can often serve the same purpose). Menem’s approach to the judiciary was far more similar to the Kirchners than the ideological antipathy between the two schools of Peronism might suggest – he also created dozens of new federal courthouses to complete his takeover. Perhaps the main difference between the two styles is that Menem’s judicial offensive preceded the corruption rather than coming afterwards – indeed Néstor Kirchner kicked off in 2003 by not only promising but also delivering an independent Supreme Court while his first two Justice Ministers had a clean enough image, Gustavo Beliz (now Strategic Affairs secretary) and current Supreme Court Chief Justice Horacio Rosatti. Not that this sufficed to convince the Herald even then, with one of my editorials in mid-2003 insisting on a “clean Peronist government as a contradiction in terms” while pointing to far too much money passing between too few hands during Kirchner’s three gubernatorial terms in Santa Cruz, as empirically verified by businessmen with Patagonian dealings.

Both Menem and Kirchner reached the presidency via minor provinces (La Rioja and Santa Cruz respectively) – once might be an accident but twice looks like carelessness, as Oscar Wilde would put it. In point of fact the provincial feudalism epitomised by these two men is all over the place in Argentina with minimal evolution since the caudillo strongmen predating the 1853 Constitution – the Kirchners are only an extreme example, nothing unique.

In this metropolis it is all too easy to ignore what is happening in the rest of the country or to minimise its importance. Thus taking the two aforementioned provincial launching-pads to the presidency, only half a dozen of the 24 Greater Buenos Aires districts have less people than all Santa Cruz while La Rioja (whose most famous caudillo Facundo Quiroga called himself the “tiger of the plains”) is less populated than Tigre. So who cares about them, one might think? Yet collectively these 22 inland provinces great and (mostly, at least demographically) small add up to a clear majority. Argentina’s population will be updated as from next month but the bicentennial census of 2010 quantified that of the 40,117,096 inhabitants then, Buenos Aires City and Province accounted for 18,515,234 people with 21,601,862 dwelling elsewhere. Great oaks from little acorns grow – no coincidence that the other three bills to expand the Supreme Court come from Neuquén, San Luis and Menem’s La Rioja (also look at the ordeal of the Entre Ríos prosecutor who nailed former two-term governor Sergio Urribarri for corruption).

Concluding with a thumbnail sketch of the 21 men and two women entering the Supreme Court in my 34 years of Herald newsroom experience (1983-2017), democracy returned in 1983 with Raúl Alfonsín naming Genaro Carrió as chief justice along with an all-male team of Enrique Petracchi, Carlos Fayt, Augusto Belluscio and José Severo Caballero (a name suggesting the severely gentlemanly court, which in many ways it was). Carrió resigned in 1985 and was replaced (also as chief justice) by Jorge Bacqué. All legal beagles up to then.     

Which brings us up to Menem’s 1990 expansion from five to nine justices, which actually created not four but six vacancies since Bacqué and Caballero resigned in outraged protest. Until the 1994 constitutional reform passed the final choice of Supreme Court justices to the Senate, Menem planted no less than 10 acolytes: Eduardo Moliné O’Connor, Julio Nazareno, Julio Oyhanarte (until 1991), Rodolfo Barra and Mariano Cavagna Martínez (both until 1993 as gestures towards the political pact leading to constitutional reform and Menem’s re-election), Ricardo Levene Junior (until 1995), Antonio Boggiano, Guillermo López, Adolfo Vázquez and Gustavo Bossert. Of all these men only the latter had no apparent Peronist or rightist links, while Nazareno was a law partner from La Rioja and Moliné O’Connor reputedly Menem’s tennis coach (actually an occasional partner).

Pushback against the “automatic” majority of this tame court began in 2002 with the impeachment of all nine justices under the Eduardo Duhalde presidency and a Congress majority (always short of two-thirds) against six of them, although only Bossert resigned out of “spiritual fatigue” despite being cleared (to be replaced by current justice Juan Carlos Maqueda from Córdoba). Kirchner renewed the onslaught in 2003 with Nazareno, Vázquez and López resigning under pressure followed by Belluscio in 2005 while Moliné O’Connor and Boggiano were bounced. They were incompletely replaced by the first two women Elena Highton de Nolasco and Carmen Argibay (lending ideological as well as gender balance by coming from the right and left respectively) along with Ricardo Lorenzetti in 2004 followed by Eugenio Zaffaroni in 2006, leaving the Court two justices short until downscaled late that year.

Since then deaths (Petracchi and Argibay in 2014 and Fayt in 2016 at the age of 98) and resignations (Zaffaroni on reaching the statutory age of 75 in 2014 and an even older Highton de Nolasco last November) have left the Court below strength despite Mauricio Macri installing Rosatti and Carlos Rosenkrantz. Which leaves a door open for packing.