The Popular Vote for Mexico’s Supreme Court Justices?
By ENRIQUE KRAUZE
There are those who have tried to justify and legitimize the absurd idea of holding a public election to choose the justices of Mexico’s Supreme Court (SCJN), a proposal presented by President Andrés Manuel López Obrador (AMLO) in his bid to concentrate power in the executive branch and eliminate checks and balances, by drawing on the works of the late national historian, economist and diplomat Daniel Cosío Villegas.
But that is a blatant misrepresentation: Cosío Villegas would never have endorsed such nonsense.
The specific work that is invoked is “The Constitution of 1857 and its Critics,” which Cosío Villegas published in 1957. He wrote it on the centenary of the Liberal Charter, to defend it against two eminent critics from the era of Mexican dictator Porfirio Diaz (specifically, Justo Sierra and Emilio Rabasa), who considered it impractical for various reasons, including the composition of the judiciary, whose limitations they attributed to the way in which judges were selected.
Cosío Villegas’ method was to evoke the test of history, that is, to ponder the functioning of Congress and the court in the Restored Republic (1867-1876), a brief and unique historical period during which the Constitution of 1857 was in force before “operating in the void of external and lying conventions” of the Porfiriato. And his conclusion was clear: the constitution worked admirably.
It must be remembered that, at that time, Mexican elections — both for the presidency and for deputies and justices of the Supreme Court — were indirect. With respect to the SCJN, the constitution established that each justice would last in his position for a period of six years and his election would be indirect in the first degree, “in the terms provided by the electoral law.”
The electoral law that was referred to was the Organic Electoral Law of Feb. 12, 1857. Its rules indicated that citizens would vote for electors, who, meeting in a district electoral board, would name the individuals who would hold positions of representation and justice. The specific procedure to elect the justices of the court began with the election of its president, which was analogous to that of the president of the republic:
- The day after the deputies were named, each district board would meet again and the voters would name the president of the court. The selected candidate had to gather the absolute majority of the voters of the republic; otherwise he would be elected by Congress.
- The rest of the members of the Supreme Court would be elected within three days following the appointment of the deputies, one-by-one, in the same way as the presiding justice. In the event that the candidates did not obtain an absolute majority, Congress would elect them.
Cosío Villegas did not deny that this method of election, as Rabasa had argued, was inappropriate:
“A public election is a very bad system to designate the magistrates of the court,” he said. “The people may not be the best judge to determine if a person is such a good jurist that he deserves to be exalted to the highest court of the republic. All of this is entirely correct, and yet Rabasa’s criticisms and his fears cannot be based on the 10 years, from 1867 to 1876, the only ones during which the constitution was daily, sincerely and loyally put to the test.”
Cosío Villegas’ argument was not intended to defend that method of selection, but rather was directed to the justices of that time, whose political and moral garments would forever transcend history. Let us just remember a few names from the first Supreme Court of the Restored Republic: José María Iglesias, Vicente Riva Palacio, Ezequiel Montes, José María Lafragua, Manuel María de Zamacona and José María del Castillo Velasco. They were, as he said, all “fierce, haughty, arrogant, foolish, unreasonably independent.”
Their liberal tempers did not stem from nor depend on the way in which they were selected. Instead, it was the consequence of the very nucleus of their lives, their root objectives and raisons d’être, and this was manifested above all in their absolute independence from the executive (Benito Juárez, Sebastián Lerdo de Tejada), whom they bitterly criticized in the press and against whom they issued innumerable and famous injunctions.
But the mere fact that during those 10 years no “markedly stupid man or highly ignorant man, and not even a purely political entity” managed to sneak into the Mexican Supreme Court, did not ensure that that would always be the case. In fact, Cosío Villegas pointed out, in 1884 “the Constitution of 57 failed in reality” and Porfirio Díaz was elected as a magistrate, “a purely political entity and a man very close to illiteracy.” And with that, the country no longer lived “in the truly democratic environment, of real political life, that Mexico had enjoyed from 1867 to 1876.”