In Mexico, Justice Will Remain a Family Matter

Judicial corruption in Mexico is a pervasive problem. And while high-level scandals tend to grab the headlines (see, for example, here, here, and here), much of the corruption is more pedestrian. While the causes of Mexico’s judicial corruption problem are various and complex, one persistent contributing factor is the endemic nepotism throughout the judiciary.

Of the more than 50 types of position in the judicial branch (including both judgeships and various administrative positions), only two—federal circuit and district court judgeships—use a competitive merit-based hiring process. For the rest, judges can choose whom they please, with little oversight. Moreover, once hired, these individuals have an insurmountable advantage in promotion in the judiciary, given that most job postings (and, informally, judgeships) require that the candidate have previous experience in the judicial branch. And even with respect to circuit and district judgeships, which are supposed to be filled through an open and merit-based competitive selection process run by a body called the Federal Judicial Council (CJF), in practice the CJF often creates “special” vacancies with different criteria (in effect, lower standards).

As a result of all this, nepotism in judicial hiring and promotion is pervasive, as judges are able to secure positions for friends and family. At least 51% of Mexico’s judges and magistrates are related to someone else working in the judiciary, with that number as high as 80% in some states. (To take one particularly egregious but not totally anomalous example, in one judge’s chambers, 17 employees were related to the judge.) This nepotism is not only corrupt in itself, but it also contributes to other forms of corruption. For one thing, corrupt judges can appoint those who will participate in, or at least be complicit in, corrupt practices—in some cases appointing individuals recommended by organized crime groups. But even when such deliberate wrongdoing is not the issue, untrained or unprofessional judicial bureaucrats and judges are more susceptible to corruption, and more likely to create the kinds of delays and inefficiencies in the system that both invite and obscure corrupt actions.

There hadn’t been much appetite in the Mexican Government to address the judicial nepotism problem until reform-minded President Andrés Manuel López Obrador and Chief Justice Arturo Zaldívar took office. Since February 2020, both men have been enthusiastically lobbying for a judicial reform package deemed the most ambitious since 1994. This bill, overwhelmingly passed by the Mexican Senate and Chamber of Deputies in recent months, is a behemoth, with a variety of significant structural changes to the judicial branch. Among these many reforms are several measures designed, at least in part, to address the problem of judicial nepotism:

  • First, the bill would alter the CJF, transforming it from a mainly administrative body to one that also exercises jurisdictional and investigative functions. As most relevant here, the bill would limit judges’ bureaucratic control over their chambers by making things like staff size, income, and tenure matters of federal regulation. Furthermore, judges who do not comply with the new requirements, or who are found to engage in nepotistic hiring practices, may be removed from their positions by the CJF.
  • Second, the new law converts the Federal Judiciary Institute—which currently operates as a kind of dedicated think tank for the CJF—into a Federal Judicial Training School (EFJ), which would become the premier training center for those who want judicial careers. Furthermore, in addition to providing training for judicial branch hopefuls, the EFJ will conduct competitive examinations for judicial branch positions. The bill suggests that the meritocratic competition process requirement would apply to all judicial branch positions, an expansion from the current application only to judgeships.

Unfortunately, while presumably well-intentioned, these reforms are unlikely to do much to curb the rampant nepotism in the Mexican judiciary.

  • First, the bill as written does not establish any standards for admission to, or education at, the new EFJ; the bill contains only general statements that a school will be founded for the purposes of reducing nepotism and increasing applicant quality. And the fact that the EFJ would be effectively controlled by the CJF is cause for concern, given the CJF’s previous practice of creating “special vacancy” exceptions to established meritocratic processes. While demanding granular admission requirements or a specific curriculum is probably more than can or should be done in a general reform bill like this, it would have been better if the bill had at least established measurable goals and explicit values to help ensure meritocratic admissions and examination processes.
  • Second, and perhaps more importantly, the bill is similarly vague regarding the promised “competitions” for employment. The bill’s proponents have suggested that future judges and administrative personnel in the judicial branch would be drawn from the school and selected via competition, but there is no clause in the present bill that actually requires this. Without a mandate, though the EFJ may create new pool of more qualified judicial candidates, alternative hiring systems more prone to nepotism can continue. The bill also fails to specify the limits that the CJF will place on a judge’s hiring discretion; it seems that the CJF could entirely supplant a judge’s discretion, but it’s also possible that a judge (and the CJF, in the context of appointments to circuit judge positions) could ignore the bill without consequence.
  • Third, the bill lacks sufficient attention to implementation issues, a failure that has doomed previous judicial reform initiatives. The bill does not, for example, outline how oversight or education of the judicial pipeline could be funded or designed, nor does it establish how the CJF can credibly investigate and remedy nepotism. There is no reporting infrastructure in place, and the only remedy that the CJF can impose in response to a judge’s abuse of his or her hiring authority—at least the only one mentioned explicitly—seems to be outright removal, which might be too extreme a sanction to actually use much in practice.
  • Fourth, the bill seems to further empower the CJF—endowing it with a great deal of oversight and control over the judiciary—without addressing fundamental concerns regarding the CJF itself. Members of the CJF have previously voted against implementing internal procedures that would limit biased hiring practices, and, as noted earlier, the CJF is not innocent when it comes to fostering nepotistic practices. (It may also be a matter of concern that the CJF is functionally dependent on the Supreme Court, which has its own history of nepotistic scandals that have implicated justices.) The CJF requires an overhaul before it is trusted with substantially greater powers over the judiciary, and if it is to credibly assume an oversight role, it must first be made fully independent of the Supreme Court.

There’s some good in the bill, which includes among its many provisions things like promises for gender equity in the judiciary and public funding for future public defenders. But despite the intentions of the drafters, the bill’s anti-nepotism measures seem largely cosmetic, and unlikely to deliver on their promise.

8 thoughts on “In Mexico, Justice Will Remain a Family Matter

  1. Super interesting topic! I am particularly interested as something similar occurred in Peru. However, one question I have is whether this bill is just the first step into actually implementing the corresponding regulation in order to implement this reform? If that is the case, then maybe Mexico might still have a chance at fixing these issues.

    • The bill reached the approval of 18 state congresses around a week ago, which means that it’ll be incorporated into the Mexican Constitution. Further implementing legislation could certainly provide more comfort and address some of the concerns I’ve listed here, but even so, the structural changes to the judiciary remain concerning.

  2. I hate to be a cynic, but I wonder whether legislation can actually achieve meaningful progress. It seems to me that perhaps a large degree of the problem is the legal culture in Mexico. Perhaps only meaningful change can occur if the legal community changes its attitude and commits itself to actually reforming nepotistic practices. This may make a more durable and impactful change on the nation’s corruption scene, but would surely require a major overhaul in thinking.

    • I’ll be a cynic right along side you! From reading the bill and the legislative history, you’ll see a lot of soaring rhetoric with not much granular detail– which makes me personally doubt the commitment to the bill’s stated motivation. Addressing corruption in Mexico is a wholesale endeavor, and adjusting attitudes through policy is always a challenge.

  3. Jaylia, thank you for this post! You touch on this a bit, but I also couldn’t help but wonder how might the judiciary’s own role in interpreting this law limit its implementation. Is there any concern that judges may use their own role to stymy the process, e.g. narrowly interpret the law if someone brings a challenge against it?

    • Hi Brooke, the judiciary might push back on a policy level, but Mexican judges actually don’t often make precedential legal interpretations. In order for something to be considered jurisprudence, the Supreme Court and appellate courts must rule on the same issue in the same way, five times in a row. Or, if there’s ambiguity in the law, judges will consult with legal scholars. Additionally, the issue here is a matter of restructuring and procedure, and it would be difficult for a judge to combat this law using their role as an arbiter (though as a bureaucrat that may be a different story!)

  4. Mexico seems to have chosen the most ambitious means possible of uprooting judicial nepotism. Why not just have the EJF administer a standardized exam to those with a qualifying degree (like the bar exam in the US) without the logistical nightmare of starting a school? Passing the exam would be a prerequisite for all relevant positions within the judiciary, and existing schools will then likely modify their curricula accordingly. That change would sidestep a lot of the implementation problems discussed and limit the CJF’s role to that of exam administrator and blind grader.

    • A standardized exam does seem to be part of the EFJ reforms, but without strict oversight in place as to the design, administration, grading, and then hiring, I think an exam would largely be toothless. Greater, systemic change regarding judicial hiring is probably necessary. I don’t begrudge the scope of this bill/change, but I don’t think that the change will create effective and more just results the way that it is currently presented.

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