Appointment and Removal Process for Judges in Argentina: The Role of Judicial Councils and Impeachment Juries in Promoting Judicial Independence, The

Latin American Politics and Society, Summer 2007 by Chávez, Rebecca Bill

ABSTRACT

This article explores the conditions that allow judicial councils and impeachment juries to promote judicial autonomy. In theory, these bodies intervene in the appointment and removal of judges in order to reduce executive control over court composition, thereby promoting judicial independence. Using the case of Argentina at the federal and the subnational levels, this study demonstrates that competitive politics enhances the capacity of judicial councils and impeachment juries to bolster judicial autonomy. Interparty competition provides incentives for the executive to develop a meaningful system of checks and balances, which includes an independent judiciary that can check executive power. In contrast, monolithic party control-defined as a prolonged period of unified government under a highly disciplined party-permits the executive to maintain a monopoly on power and thereby control judicial appointments and removals.

A major threat to democratic consolidation in countries across Latin America is a weak judiciary that is unable to check executive authority. In much of the region, the president is elected democratically but is thereafter subject to few constraints. Judicial autonomy is a necessary ingredient to build the rule of law in countries like Argentina. Only a judiciary that is free from pressure, inducement, and manipulation can check abuses of power and bind powerful actors. Judicial independence requires impartiality and "political insularity" (Fiss 1993, 56). Judges must not be biased in favor of the powers that be, or fear to challenge them. In the ultrapresidential systems of Latin America, courts must have the capacity to challenge the executive branch.1

A merit-based appointment process and a transparent removal procedure for judges can bolster judicial independence.2 In much of Latin America, however, informal practices that permit the president to control the composition of the courts have been stronger than the constitutional guarantees of judicial independence. Informal practices that allow presidents to appoint and remove judges without interference shape the incentive structure in such a way that judges are unlikely to challenge the executive. Where judges are punished for attempting to limit executive prerogatives, the president easily exerts control over the judiciary.

Violation of a transparent and merit-based appointment process stands in the way of judicial autonomy. Highly politicized and secretive selection based on cronyism helps ensure the appointment of pliant judges. Presidents who seek to control the courts attempt to fill them with subservient judges. In determining whether a president violates the formal appointment process in order to select docile judges, factors to consider include the level of transparency, the speed of the selection process, and the nature of congressional debate. For instance, rushing an appointment through the senate is one way to avoid public input, facilitating the appointment of judges with questionable merits. However, the appointment of judges who are expected to support the president is insufficient on its own to indicate subordination of the judiciary. U.S. presidents, for instance, seek to select justices who are likely to support presidential ambitions.3 Thus, a consideration of whether presidents respect judges' tenure protection must accompany an analysis of the appointment process. Life tenure mitigates appointments based on political considerations.

Violation of judges' tenure protection threatens independent courts. Where presidents have the unfettered authority to remove judges, judicial figures accept their subordinate and passive roles. Alexander Hamilton stressed the importance of tenure protection for judicial autonomy.

In a monarchy it [tenure protection] is an excellent harrier to the despotism of the prince; in a republic it is a no less excellent harrier to the encroachments and oppressions of the representative body. And it is the best expedient which can he devised in any government, to secure a steady, upright, and impartial administration of the laws. (Hamilton 1937 [1788], 503)

Although all Latin American constitutions grant judges tenure protection, presidents have often circumvented the formal rules. When the executive bypasses the constitutional channels for removal, judges have incentives to support the executive's wishes. Court purges, a high turnover rate, and low average tenure suggest a violation of tenure protection. For instance, where judicial terms are coterminous with presidential terms, it is likely that the executive has violated the formal rules governing the removal of judges.

Many Latin American countries have recently established a Consejo de la Magistratlira (Judicial Council) and a Jurado de Enjuiciamiento (Impeachment Jury), which intervene in the appointment and removal of judges with the goal of promoting judicial autonomy by reducing executive control over court composition. ' Over the past 20 years, Argentina, Bolivia, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Mexico, Panama, and Paraguay created judicial councils (Zaffaroni 1994,147-65; Hammergren 2002, 3-5). Despite their potential, however, these agencies do not necessarily possess the authority to check the president (Vanossi 1994, 2). Venezuela's highly politicized Judicial Council, which began operating in 1969, demonstrates that these potential organs of control do not always result in greater autonomy for the courts. Over time, the independence and authority of Venezuela's council was restricted, leading to its demise in 2000 (Parra Mejías 1999).