The Supreme Court is not worried about its current composition following the death of Enrique Petracchi and the sure retirement of Justice Eugenio Zaffaroni early next year. In fact, the justices are ready to issue rulings with just three members, court sources yesterday said.On the same day as Petracchi was laid to rest, the justices wanted to make it clear that they are not worried whether a successor is appointed to replace Justice Eugenio Zaffaroni when he steps down.
Meanwhile, Radical (UCR) party senators said they were not going to validate a justice nominated by President Cristina Fernández de Kirchner, saying that right belonged to the next president who will move into the Pink House in December 2015.
After Petracchi’s death, everyone started looking at Zaffaroni, who in January will be turning 75, the age limit established for judges in the Constitution. In conversation with the Herald in February, the justice, who is considered to be the most progressive member in the tribunal, announced that he was planning to leave the court. But yesterday the topic was discussed in the Court’s weekly meeting and sources confirmed that the members of the tribunal have started to think of the scenario ahead of time.
“We all know that Zaffaroni is leaving. If he steps down, the court will not face problems,” a source at the country’s highest tribunal said. “The court can still operate with four members or even with three.”
Zaffaroni largely agreed with this diagnosis.
“The Court can operate with four members,” the expert in Criminal Law said. “In case of a stalemate, the court can request a judge from the Criminal Appeals Court to join the justices to break the deadlock.” In fact, the presidents of the Appeals Court can be called by justices to issue a ruling but if all of them cannot take part in the discussion, a member of the list of substitute justices, many of whom are more aligned with the government, can be requested to partake in the debate.
Replacement
The deaths of Petracchi on Sunday and of Carmen Argibay in May left the Supreme Court with the five members that a law approved in December 2006 says it must have.
If Zaffaroni leaves by the end of the year, the government will have plenty of time to nominate a successor before Fernández de Kirchner steps down.
The government is allegedly considering former Buenos Aires security minister León Arslanián and former Radical lawmaker Ricardo Gil Lavedra as possible contenders for the highly coveted post. Both were judges in the historic 1985 trial against the junta members and also joined Zaffaroni in the drafting commission to overhaul the Penal Code, submitted earlier this year but soon forgotten by the Kirchnerite administration amid criticism from Sergio Massa’s Renewal Front for allegedly being too lenient on criminals.
Some insist the president wants to nominate a staunch ally, mentioning Attorney-General Alejandra Gils Carbó as a possibility to be the government’s bet for the highest tribunal but sources linked to the head of prosecutors told the Herald that a position as a justice was not in her plans. “She does not want to become a judge. She wants to continue as the head of prosecutors,” a source highlighted.
It may have more to do with political reality than desire.
Kirchnerites are aware of the fact that appointing a justice will not be an easy mission since they do not have the 48 votes necessary in Senate to pass a nomination for the Supreme Court without agreements with other parties.
UCR chairman and Senator Ernesto Sanz yesterday said that his party was not going to endorse “any nomination proposed by Kirchnerism.”
“The government wants to take over the judiciary appointing judges and prosecutors aligned with the administration. They do not want an independent judiciary. We will not back any nomination that will help reach that goal,” the presidential hopeful also said.
“The Court can still operate with three members,” Sanz added.
That possible scenario was also discussed yesterday in the court, sources confirmed.
Zaffaroni is not the only member of the highest tribunal thinking of retirement. Carlos Fayt, who is 96 years old, said he was evaluating leaving the court but he did not specify when. Fayt was last year engulfed in a controversy with the president, who accused the justice of not obeying the Constitution that states judges must retire at 75. Fayt is seen as the member of the court most clearly aligned with the opposition.
A question of numbers
Justice Secretary Julián Álvarez said on Monday night that the discussion over Zaffaroni’s successor had to be postponed until next year. But he also opened the door to another debate.
“As soon as we start discussing names, we will also be able to start discussing the number of members of the court,” Justice Minister Julio Alak’s number two said.
Sources linked to Álvarez confirmed to the Herald that they are analyzing that possibility, though it was Fernández de Kirchner, who in 2006 pushed for reducing the number of Supreme Court justices.
Not presidential
Sources linked to Chief Justice Lorenzetti yesterday dismissed reports that he was thinking of leaving the court to launch his candidacy for the 2015 presidential elections.
Journalist Horacio Verbistky published on Sunday in Página/12 that Lorenzetti had been pushed forward as a potential running-mate for Radical lawmaker Julio Cobos.
“Nonsense. That is not true: neither the candidacy nor the offer,” sources close to Lorenzetti said.
As revealed by Wikileaks though, Lorenzetti has taken part in informal meetings with opposition leaders. In 2011, there was a meeting between PRO Senator Gabriela Michetti, Broad Front UNEN economist Alfonso Prat Gay, Salta Governor and Lorenzetti. Sanz was also part of the group who met to start “thinking the country ahead.”
Sources linked to Lorenzetti did not deny the meeting but insisted it did not have a political purpose.
Herald staff