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judicial reforms
The US Has No Business Telling Mexico Not to Reform Its Judiciary
The United States might prioritize putting its own house in order and follow Mexico’s example to confront the unelected far-right ideologues who have hijacked U.S. democracy from the bench with total impunity.
Oct 02, 2024
This week Mexico's former President Andrés Manuel López Obrador, or AMLO, handed over the reins to Claudia Sheinbaum, a close ally in his Morena party and the country's first female head of state. While López Obrador is leaving office with soaring approval ratings, and has overseen significant reductions in poverty and unemployment, recent articles and op-eds use terms like "authoritarian" and "autocratic" to describe his legacy.
The criticism of AMLO and Morena’s supposed "authoritarian bent" has centered on a recently approved package of constitutional reforms to Mexico's judicial system. The Editorial Board of The Washington Post declared that “at stake are judicial independence and the rule of law,” and The Economist warned that “in America’s biggest trading partner the rule of law and democracy are under attack.” On August 22, U.S. ambassador to Mexico Ken Salazar called the reforms a “major risk to the functioning of Mexico’s democracy.” Shortly afterwards, Canada’s ambassador also criticized the proposal, prompting López Obrador to suspend relations with both embassies.
The reforms, in particular the establishment of popular elections for judges and supreme court justices, will profoundly shake up the Mexican judiciary. However, there is little basis for alleging that they represent a threat to democracy. Whatever the drawbacks or merits of the measures, the United States—where an ultra-conservative Supreme Court has been plagued by egregious conflict of interest scandals—has no business interfering in Mexico’s domestic affairs, let alone a democratic and constitutional process of reform.
With the additional constitutional reforms proposed including measures to enshrine a ban on genetically modified corn, hydraulic fracturing (“fracking”), and open-pit mining, a democratically elected supreme court willing to uphold such measures represents a genuine threat to big agrobusiness, fossil fuel capital, and extractive enterprises on both sides of the border.
More troublingly, attacks against Mexico’s judicial reform appeared to have more to do with disciplining the incoming Sheinbaum administration and undermining the progressive elements of her party’s agenda than defending democracy and the rule of law.
The judicial package was just one of 20 constitutional reform initiatives submitted to the Mexican congress by AMLO in February. It comes after key measures of the governing Morena party’s agenda were blocked by the country’s high court. The reform provisions include measures to expedite case resolution; enforce gender parity; open supreme court sessions to the public; cap judicial salaries; keep challenged laws or policies active until ruled unconstitutional; and establish bodies to supervise and sanction judicial officials, as well as a less savory move to expand the list of crimes that warrant mandatory pretrial incarceration.
U.S. objections, however, are focused on one key transformation: the democratic election of the judiciary.
Until the reform, Mexico’s federal judges and magistrates, as well as local circuit and district judges, were appointed through a process overseen by the Consejo de la Judicatura Federal (Federal Judiciary Council), an unelected arm of the judicial branch. The supreme court is currently composed of 11 justices including the president of the court who oversees and participates in the plenary. They meet as a full group and in two five-member chambers; the justices are nominated by the president of Mexico, approved by the senate, and serve 15-year terms.
Under the newly approved judicial overhaul, federal judges and magistrates will be popularly elected for nine-year terms, with the possibility of reelection. The same process will take place at the state level for circuit and district courts. Supreme court justices (referred to as ministers in Mexico) and Federal Electoral Tribunal magistrates will also be popularly elected. The number of supreme court ministers will be cut to nine and their terms reduced to 12 years, while the two chambers would be eliminated in favor of the single body.
Contrary to claims of executive overreach, the reforms stipulate that candidates who meet the necessary qualifications be proposed in equal proportions by all three branches of government, then narrowed down via a lottery system. The first elections will take place in June 2025 for the supreme court, Federal Electoral Tribunal, and half of the federal judiciary. By 2027, all sitting magistrates and judges will be up for election.
Throughout AMLO’s presidency (2018–2024), Mexico’s supreme court has served as a backstop against some of the government’s more ambitious reforms, sometimes intervening on behalf of powerful business interests. In a 3-5 decision in March 2021, for example, a supreme court chamber struck down a recently passed Electricity Industry Law for privileging the Comisión Federal de Electricidad (Federal Electricity Commission), a public utility, over private sector investors. On two occasions, the court overturned electoral reforms which, like the judicial reform, sought to restructure national election oversight bodies and elect their authorities by popular vote.
Morena argues that the reforms are intended to root out corruption and nepotism in the judicial system and democratize a historically elitist and authoritarian judicial branch. This argument has merit: Internal studies have found family networks of up to 89 relatives employed in the courts; 53.4% of magistrates and 18% of judges had more than four relatives working in the judicial branch in 2022.
Judicial positions in Mexico are lucrative: That same year, more than 1,000 high-ranking judicial employees were taking in between 430,000 and 518,000 pesos per month, well above $21,500 per month at a time when the monthly minimum wage in most of the country stood below $260.
Sheinbaum has defended the new measures, explaining that rather than consolidate executive power, the reform abdicates it.
“With this reform, the next president is renouncing the power to personally name supreme court justices,” she told the public in a recent social media message. “The president is democratically elected. Deputies and senators are democratically elected. Now, judges, magistrates, and justices will be democratically elected.”
Yet the reforms were met with resistance from powerful corporate interests. The U.S.-Mexico Chamber of Commerce warned that, without significant changes, the “social and economic impacts will be inevitable and devastating.”
In his two-page statement criticizing the measure, U.S. Ambassador Salazar wrote that the proposal “will threaten the historic trade relationship we have built,” while the Canadian embassy declared it was a source of concern for private investors.
Major U.S. outlets including The Washington Post and The New York Times also ran incendiary columns that suggested the measure would undermine governance and endanger trade relations.
Their arguments varied. Some contended that elections would provide an opportunity for organized criminal influence; others warned the reforms represented an authoritarian presidential power grab; some merely raised vague concerns about destabilizing the investment climate. Little evidence backs up these claims. Rather than the contents of the reforms, big business, in Mexico and in the United States, appeared to balk at the restructuring of a system that has generally favored its interests.
Much of the criticism took a misogynist tone. The Post’s August 25 editorial espoused a patronizing and not subtly gendered view of President Sheinbaum’s relationship with López Obrador. It referred to AMLO as “her boss” and “her patron,” as though Mexico’s first female president were a promoted secretary and not a veteran politician and climate scientist with the strongest electoral mandate in Mexican history.
At the same time, the measure drew protest from within the Mexican judiciary, prompting marches, work stoppages, and strikes by judges and court workers. They framed their actions as a struggle against a reckless consolidation of executive power and politicization of the bench by the outgoing president. Advocates for reform dismissed these protests as attempts to retain long-held privileges.
The package faced formal challenges from within the judiciary as well. On August 31, a judge in the state of Morelos—herself a vociferous opponent of the reform—issued an injunction to suspend debate in congress at the behest of a group of magistrates who argue they stand to lose their jobs without due process. Simultaneously, a judge in Chiapas issued another injunction to prevent the measure from advancing to state legislatures for ratification. Hours later, a district court judge suspended both injunctions, permitting the process to move forward.
International financial markets also reacted negatively, perhaps because they find the current corrupt judiciary more friendly to their interests than an election-based system that would demand more accountability to public interest and needs. Morgan Stanley downgraded its investment recommendation for Mexico, and Fitch Ratings expressed concerns that the reforms could negatively impact the country’s corporate investment climate. The Mexican peso, which had fallen significantly following Sheinbaum’s commanding June 2 presidential victory, dropped again as the reforms moved forward in congress.
At a moment of political transition, these market moves send a disturbing message tantamount to blackmail to a fledgling administration with an ambitious agenda for a public sector-led sustainable energy transition. With the additional constitutional reforms proposed including measures to enshrine a ban on genetically modified corn, hydraulic fracturing (“fracking”), and open-pit mining, a democratically elected supreme court willing to uphold such measures represents a genuine threat to big agrobusiness, fossil fuel capital, and extractive enterprises on both sides of the border.
Despite this tidal wave of opposition, the reforms passed the Chamber of Deputies on September 4, were approved in the senate on September 10, and were subsequently ratified by a majority of state legislatures, where Morena and its allies hold commanding majorities. On Sunday, September 16, Mexican Independence Day, the president signed them into law. Far from a presidential imposition, their implementation will be the result of Mexico’s constitutionally established democratic process.
Some critics on the left suggest that the reforms do not go far enough, exempting from popular election military tribunal judges and administrative magistrates. In an analysis for the Friedrich Naumann Foundation for Freedom, distinguished jurist and human rights advocate Carlos Pérez Vasquez argued: “If the radical democratization of justice is the point of the proposed reform, why not go further, returning to our own history to restore, gradually, the existence of popular juries as a central element of the democratic legitimacy of the justice system?”
Nevertheless, accusations that the reforms will undermine judicial independence and politicize a neutral judiciary ignore the reality that Mexico’s judicial branch is already an active political agent, while charges that the measures represent an authoritarian executive power grab willfully mischaracterize the initiative. The reforms may be imperfect, and they may not address the profound structural obstacles to justice in Mexico, but they represent a legitimate political project with support across the country’s national and local representative bodies.
In a recent column, independent Mexican journalist and political analyst Viri Ríos, a critic of the proposal for judicial elections, dismissed the opposition’s claims that they would put the country on a path to dictatorship.
“Personally, I don’t support the judicial reform, but I’m a democrat and therefore I know that my disagreement doesn’t authorize me to call my opponent authoritarian, much less to use everything in my power to subvert the implementation of their agenda,” she wrote. “In a democracy, losing has consequences. Unfortunately, in Mexico it’s clear that the losers don’t want to accept them.”
That the United States, a nation that combines lifetime Supreme Court appointments with a state-by-state system of local judicial selection in which most hold popular elections for lower court judges, could credibly lecture Mexico about judicial reform and the perils of judicial democracy is laughable.
Moreover, Salazar’s threats constituted a brazen intervention into a sovereign nation’s internal politics—hardly a first for a U.S. ambassador, but unacceptable nonetheless. Instead, the United States might prioritize putting its own house in order and follow Mexico’s example to confront the unelected far-right ideologues who have hijacked U.S. democracy from the bench with total impunity.
Mexico has every right to experiment with its forms of democratic self-governance. Maybe the United States should give it a try.
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For Our Rights and Our Future, the Senate Must Get To Work on Judicial Confirmations
Focusing on confirming judges will make a tremendous difference in our lives and for our fundamental rights and freedoms.
Sep 13, 2024
President Biden has already accomplished an incredible amount to help create a federal judiciary that works for everyone. From the confirmation of more than 200 qualified and diverse lifetime judges (and counting) to advancing a long-overdue conversation about modernizing and reforming our Supreme Court so that we can one day trust that it provides equal justice for all, we are making important progress. At a time when the extremist majority on our nation’s highest court has rolled back the progress we have made—taking away the fundamental right to abortion, removing a vital tool for eliminating unfair barriers to educational opportunity, weakening voting rights for communities of color, and more—the task of improving a damaged judiciary is daunting.
It’s no surprise that the public’s trust in the judiciary is declining, as reports persist about some Supreme Court justices’ deeply concerning unethical behavior. Our justices should be serving all of us, but some of them are showing that they are only concerned about the interests of the wealthy and powerful. As we live in this reality, we must also do the work to foster a federal judiciary that respects, recognizes, and advances our civil and human rights.
Our justices should be serving all of us, but some of them are showing that they are only concerned about the interests of the wealthy and powerful.
It is incumbent on every generation to protect the progress made and work toward a more inclusive and thriving democracy and society in which everyone is treated with respect and dignity. Unfortunately, in the past few years alone, a manufactured and coordinated campaign has taken us back—but we are not backing down. We are fighting for a better future where our rights, our lives, and our future are respected. For this to happen, our Supreme Court justices must be held to the highest ethical standards, and Congress must explore all options to improve how the Court functions and thus examine its structure, including limiting the amount of time justices can actively serve. In the next few months, there’s also important work that must be done that will make a real difference in our lives. Federal judges decide important cases from who can access health care to whose votes are counted. And for our democracy to endure, we need highly qualified, fair-minded individuals in courtrooms across our nation who will advance equal justice for all.
President Biden, Senate Majority Leader Chuck Schumer, and Senate Judiciary Committee Chair Dick Durbin have helped to make a significant impact, stewarding more than 200 confirmations of lifetime judges and justices to our federal courts. This includes ushering in the most diverse slate—both demographically and professionally—of federal judges in history. Nearly two-thirds of these confirmed judges are women, nearly two-thirds are people of color, and more than 40 percent have significant experience protecting people’s civil and human rights. Of course, President Biden appointed Justice Ketanji Brown Jackson, the first Black woman and first former public defender to serve on our nation’s highest court, and her service to date has been remarkable. A few weeks ago, President Biden also announced his support for long-needed changes to the Supreme Court, including a binding code of conduct for Supreme Court justices.
Transforming our federal judiciary so it not only looks like America but also recognizes and respects the rule of law—and how laws impact people's lives—has been a cornerstone of President Biden’s administration. Together we have changed the default of who is considered fair and qualified for the federal bench because we know that a judiciary staffed with brilliant people committed to equal justice—people whose experiences have been historically excluded—yields better decisions and is more reflective and representative of America. We celebrate this remarkable progress. But we cannot relent.
Time is of the essence. We need laser-like focus to fill every vacancy possible by the end of the year.
The jurists who President Biden has appointed will be serving for decades to come—far outlasting his impressive four years in office. To honor his legacy and to ensure justice is served in more corners of our country, progress must accelerate. Over the next few months, senators must urgently prioritize the confirmation of diverse judges who possess a deep commitment to our civil and human rights.
Now that the Senate has returned, we urge senators to seize every opportunity to make an immediate and lasting difference. The Democratic-led Senate, under the leadership of Majority Leader Schumer, has already confirmed several nominees this week and has now confirmed 209 lifetime nominees during the Biden administration. Dozens more are awaiting action in committee or on the Senate floor. This includes numerous nominees with critical civil and human rights experience, including experience defending religious freedom and protecting the rights of working people and those involved in the criminal-legal system. Time is of the essence. We need laser-like focus to fill every vacancy possible by the end of the year.
For some comparison, President Trump during his one term in office was able to confirm 234 nominees to lifetime judgeships with the avid assistance of then-Majority Leader Mitch McConnell. In the final months of his one term, the Republican-led Senate confirmed 30 judicial nominees, including a Supreme Court justice. We can exceed the previous administration both in numbers and quality—and we must. While we have a long way to go until we have equal justice, it’s imperative that Schumer accelerate this progress and continue to use every moment over the next few weeks and months to fill as many judicial seats as possible. With focus and determination, the Senate can leave President Biden the legacy of appointing a stunning number—more than the last administration—of superbly qualified judicial nominees.
Focusing on confirming judges will make a tremendous difference in our lives and for our fundamental rights and freedoms. We need to take all necessary steps to strengthen our judiciary so that our multiracial democracy can thrive and equal justice prevails.
President Biden’s legacy deserves no less. And our future depends on it.
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Shopping for Judges by Right-Wing Crusaders Undermines Public Trust
Random case assignment serves as a bulwark against the undue influence of political agendas on our courts.
Mar 23, 2024
If you are a right-wing activist looking to persuade a federal judge to impose your views on the country, what do you do? For starters, you go shopping.
Judge shopping, that is. Head to the courthouse in Amarillo, Texas. No matter if you aren’t from there. There is precisely one federal district judge in Amarillo. His name is Matthew Kacsmaryk. And odds are high that he will issue a ruling just as you seek, one that imposes a highly conservative, indeed theocratic, worldview. He might even issue an injunction that purports to cover the entire country.
That’s what happened a year ago when activists pulled up to Amarillo and won a ruling by Kacsmaryk effectively banning mifepristone, a medication used for more than half of all abortions in the United States. The activists knew, as the judge’s sister told reporters, that he had made it his mission to end all abortions in the United States. (He has called homosexuality “disordered” for good measure.) It showed the power of one judge with a gavel and a grudge to impose his views on tens of millions of citizens.
It will crush confidence in the rule of law if judges are seen as partisan or political actors.
This was too much even for the reactionary Fifth Circuit Court of Appeals, which stayed some of the more extreme parts of Kacsmaryk’s order while the case was appealed to the Supreme Court. Later this year, the court will hear this case. However it turns out, it was an unsettling reminder of the vulnerability of our legal system to judge shopping.
All states have at least one federal district court, but these are often broken into smaller divisions that usually automatically assign cases among one or two judges. Litigants can strategically file in a division with an ideologically friendly judge to boost their odds of a favorable ruling. That matters most when a case is heavy with political or ideological significance. Picking the right law is great; picking the right judge can be even better.
All this is magnified by the weird fact that the Supreme Court has never ruled on whether a single judge can issue a nationwide injunction stopping conduct or barring government from acting. Liberals and conservatives alike have used this for years.
Last fall, the Brennan Center urged the Judicial Conference, a panel of judges that sets policies for the federal judiciary, to address this problem. In a meeting last week, the conference took a welcome if tentative step in the right direction. It announced a policy to encourage random assignment of cases with a statewide or nationwide impact. That would lessen the odds that filing a case in a given division would give a plaintiff their judge of choice. The policy makes sense. But the guidance is nonbinding, and it’s unclear whether districts will follow it. Still, it is a promising sign that federal judicial leaders recognize judge shopping as a threat to public trust. Soon we will learn if their gentle encouragement leads to action. I’m not holding my breath.
The stakes could not be higher. Yesterday we got a glimpse of why this matters so much. Murthy v. Missouri is part of the drive to clear the path for disinformation in the 2024 election. A judge had barred the federal government from even talking to social media platforms to discourage disinformation on Covid-19 or voting. Republican state attorneys general brought the case in a division where they were all but guaranteed to get Trump-appointed Judge Terry Doughty. Last July, he ordered federal officials to stop communicating with social media companies about false content, removing a vital check on the rampant election falsehoods that continue to circulate online.
A Supreme Court ruling on the Murthy case will come in the next few months, but as my colleagues Lawrence Norden and Gowri Ramachandran have pointed out, the trial judge’s ruling has already wreaked significant damage. Government agencies simply stopped talking with Facebook, YouTube, and other platforms. Private groups and scholars pulled back. There is a wide-open terrain for the Big Lie in the 2024 election.
Judge shopping undermines public trust. Opposing it should be a nonpartisan cause. Instead, the new policy—mushy as it is—faced a sharp partisan backlash. Republican senators sent letters to about a dozen federal district court chief judges advising them to disregard the policy change. They accused the conference of involving itself with partisan battles, even though 15 of the conference’s 26 current members were appointed by President George W. Bush.
Public trust in the Supreme Court has plummeted to the lowest level ever recorded in polls. Lower courts may not be far behind. It will crush confidence in the rule of law if judges are seen as partisan or political actors. Random case assignment serves as a bulwark against the undue influence of political agendas on our courts. So one or maybe two cheers for the new policy. Next, the Judicial Conference should cement this policy in the Federal Rules of Civil Procedure. The window for judge shopping should be slammed shut.
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