Milei appoints two Supreme Court judges by decree

Javier Milei announced on Tuesday that he will appoint two new judges to the Supreme Court of Argentina by decree. He will thus bypass Congress after a year of stalled negotiations in the Senate, where he is in a clear minority. Ariel Lijo and Manuel García Mansilla, those chosen by the president, will occupy their positions on commission until the end of the legislative period at the end of next November. If during that period the Senate insists on rejecting Lijo and García Mansilla, the far-right government will be able to sign a new decree. The only presidential attempt to appoint judges to the highest court with the sole signature of the president was during the Government of Mauricio Macri, in 2016. The rejection of that decision was such that Macri gave in to pressure and accepted the legislative route.

The Argentine Constitution, since its drafting in 1860, has provided that the president can fill vacant posts that require Senate approval, such as Supreme Court judges, when Congress is in recess. The rule had practical origins: at that time, the period of ordinary sessions began on May 1 and ended on September 30. But since the constitutional reform of 1994, the Chambers meet for nine months a year, between March 1 and November 30. The possibility of appointing supreme court justices by decree presupposes a situation of force majeure.

The official argument is that the five-member Court was left with only three judges in December after two retirements. The decree “ aims to normalize the functioning of the highest judicial court in our country, which cannot carry out its role normally with only three justices,” says a statement published by the President’s Office. It then attacks the parliamentary blockade: “The Upper House should have given its approval to the candidates proposed by the Executive Branch. In no case does the Senate have the power to reject the approval of the candidates proposed by the President based on personal or political preferences of the senators.”

Milei has faced opposition to his candidates throughout the past year, especially Ariel Lijo, who does not have the best credentials for the position. Lijo is an active federal judge who has accumulated a mountain of questions about his suitability: he has more than 30 complaints for poor performance before the Council of the Judiciary, the body that controls the judges. He has also been criminally charged with illicit association, money laundering and bribery. He is not a very active judge either: of the 89 cases of political corruption that are being processed in his court, he only elevated 14 to oral trial. In the federal courts he is accused of speeding up or delaying files according to the needs of those involved. To neutralize such negative credentials, Lijo offers Milei decisions that, it is hoped, will accommodate the Casa Rosada. He is sponsored by Supreme Court Justice Ricardo Lorenzetti, currently facing Horacio Rosatti and Carlos Rosenkrantz, the other two judges of the Court who are still active.

The second candidate is a well-known academic with ultra-conservative ideas, aligned with the “cultural war” that Milei is waging against everything that smacks of progressivism. When he went to the Senate to defend his candidacy, he was asked to give his opinion on Macri’s decree of 2016. “I would not have accepted a nomination by commission because beyond what the Constitution provides for, there is evidently a large sector of the population that, with good reasons, resists this type of decisions that are the exclusive domain of the President,” he said. The Peronist majority in the Senate did not want to have anything to do with García Mansilla, but, instead, put a price on Lijo’s candidacy at the time. Today, hundreds of judgeships are vacant throughout the country that the Government offered as a bargaining chip, but the accounts never quite closed. Faced with the failure of the negotiations, Milei decided to appoint them by decree.

Last December, when negotiations in the Senate were at a standstill, the Chief of Staff, Guillermo Francos, raised the possibility of a presidential decree to put an end to the issue. He also brought up the argument that the Court “cannot function” with only three judges. “When one looks at the time that the Court’s rulings take, it is regrettable that it has 15 or 20 years to issue a ruling. From the point of view of the quorum, it will be possible, but from the point of view of procedural efficiency, I find it hard to believe that we can continue to have a Court with three members,” said Francos. The Court responded to the advance through institutional means and agreed to an emergency regulation that allows it to request the assistance of substitute judges in case it does not reach the majority to sign the rulings. Lorenzetti voted against, accusing his colleagues of “lack of morals” and of wanting to condition the election of Lijo, his protégé, and García Mansilla. Having become Milei's battering ram within the Court, Lorenzetti never forgave the fact that in 2018 the rest of the Supreme Court justices snatched the presidency of the Court from him after ten years.

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