Mexico’s next Supreme Court justice could be hand-picked by the president

MEXICO CITY (CN) — Heading into the final year of a six-year term, Mexican President Andrés Manuel López Obrador recently announced the shortlist for his fifth Supreme Court justice appointment. But deep partisan divisions in Mexico’s legislature could lead to the unprecedented situation of him being able to choose the next justice without congressional approval.

A vacancy will soon open up on the bench of Mexico’s high court after Justice Arturo Zaldívar announced his resignation last week. The shortlist of candidates that López Obrador presented for the Senate’s consideration this week immediately triggered censure and warnings from critics and civil society groups.

The candidates — not one of whom has ever worked as a judge — threaten judicial independence due to their political and personal proximity to the president, critics say.

“It’s worrying that president López Obrador’s nominees to the Supreme Court seem to have been chosen primarily because of their close relationships with the president rather than for their professional qualifications,” said Juanita Goebertus, director of the Americas division at Human Rights Watch, in a statement to Courthouse News. “Ensuring that high-level judges are independent and impartial is crucial to protecting human rights.”

The Forum of Constitutionalists of Mexico, a trade association of constitutional lawyers, also opposed the nominations on the same grounds.

“The mission is very clear: destroy the Supreme Court,” the forum said in a recent post on X, formerly Twitter.

Two of the candidates, Lenia Batres Guadarrama and María Estela Ríos González, have direct political ties to López Obrador and his ruling Morena party. Both currently serve on the executive branch’s legal advisory council: Ríos is council chair and Batres is an adjunct adviser.

Batres is also the sister of Martí Batres, who took over as Mexico City mayor when Claudia Sheinbaum stepped down to pursue her 2024 presidential campaign as a candidate for Morena, and she was a founding member of Morena in 2014.

Ríos has over two decades of history with López Obrador, having served as a legal adviser in his cabinet when he was mayor of Mexico City from 2000 to 2006. Some have said she is not eligible for a justiceship. Holders of federal secretaryships are not allowed to serve as justices, and legal scholars have said that her post at the head of the executive legal advisory council is equivalent to such a position.

The third candidate is Bertha Martha Alcalde Luján, sister of Luisa María Alcalde Luján, López Obrador’s secretary of the Interior. She currently serves as legal adviser at the federal sanitation risk commission Cofepris.

President Andrés Manuel López Obrador and former Chief Justice Arturo Zaldívar pose together after a meeting in April 2019 in this photo taken from Zaldívar’s Facebook account. (Facebook via Courthouse News)

Legal scholars likewise expressed concern over the president’s choices to replace Zaldívar and the situation’s possible effects on the separation of powers and democracy at large in Mexico.

“They have shown — particularly two of them: Ríos and Batres — that they are very clearly partisan in the performance of their duties,” said Sergio López Ayllón, a research professor in the law department at the Mexico City-based think tank CIDE.

Their lack of judicial experience also concerned him.

“None of them has a desirable profile for a Supreme Court justice, neither for their professional career nor for recognition in the legal, academic or judicial environment,” he said in a phone interview. “Not one has a particularly outstanding CV.”

López Ayllón has worked with Alcalde in the past and had “the best impression” of her from that experience, but he did not believe that she has worked long enough or gained the proper experience necessary for the job.

At just 38 years old, Alcalde has very good credentials, but she has yet to generate the judicial background López Ayllón looks for in a Supreme Court justice: “legal solidity, a recognizable and recognized professional trajectory, and guarantees of independence and autonomy.”

Despite his claims that there is no nepotism or cronyism in his government, López Obrador has been open about his disappointment over some of his other appointees. He has been able to rely on favorable decisions from Loretta Ortiz Ahlf and Yasmín Esquivel Mossa, but he has found more recalcitrant appointees in justices Juan Luis González Alcántara Carrancá and Ana Margarita Ríos Farjat.

“I’m going to start looking at who I’ll propose — we’ll see if I’m lucky and get it right this time, because I’ve proposed four and two came out conservas,” he said at a recent press conference in reaction to Zaldívar’s resignation, using an abbreviation of “conservatives,” his catch-all pejorative for any and all targets of his ire.

So in order to make sure he gets it right, López Obrador appears to be planning to set a precedent by becoming the first head of state in Mexico’s history to choose a Supreme Court justice without needing to get congressional approval.

Unionized employees of Mexico's judiciary protest a bill to cut the branch's funding outside the Senate on Oct. 24, 2023. (Cody Copeland/Courthouse News)

Supreme Court appointees must receive a qualified majority of the Senate in order to make it onto the bench. Morena has a simple, but not the two thirds necessary for a qualified majority. If none from López Obrador's first short list of candidates receives a qualified majority vote, he must send another.

If this second round of candidates receives the same fate, Mexico’s constitution establishes that the president then gets to bypass the Congress and choose one of them to fill Zaldívar’s seat.

Filling the spot with a crony who will consistently rule his way would all but guarantee three votes in favor of the president’s projects and policies. This would bring the court dangerously close to a split that would threaten the effectiveness of cases concerning the constitutionality of laws, which require a qualified majority of eight of the court’s 11 justices to rule in favor of unconstitutionality.

“This is very worrying because we know what’s at risk: the way in which the maximum tribunal of our country works,” said Rodrigo Brito Melgarejo, a law professor at Mexico’s National Autonomous University.

Questions of judicial independence have plagued Mexico’s Supreme Court throughout López Obrador’s administration, especially during Zaldívar’s term as chief justice, which lasted the usual four years, despite Zaldívar’s attempts to prolong it.

Critics cried funny business over a creative vote count on a case concerning the president’s electricity reform in April 2022. Alleged discrepancies over who gets paid more led López Obrador to call the judiciary “rotten” and propose that justices be elected by popular vote in May.

And more recently, a presidential initiative to remove government trust funds for pensions, healthcare, infrastructure and other benefits for judicial branch employees passed in Mexico’s Congress.

Each of those flashpoints in the fraught relationship between the executive and judicial branches elicited warnings of the threat they presented to democracy in Mexico, and the current controversy brings the country one step closer to that hazard.

“Democracy is compromised in Mexico, because the president thinks that from a political perspective the court is an opponent to him, to his government, to his expectations of profound change, what they call the Fourth Transformation,” said César Astudillo, an UNAM law professor and author of a book on Supreme Court nominations.

“What they want to do is undermine the court, completely turn it into another political organ and as such control it,” he said. “Our democratic system is at risk.”

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Mexico’s next Supreme Court justice could be hand-picked by the president

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