Argentinian Judicial Reform: A Wolf in Sheep’s Clothing

On February 1, 2022, several thousand demonstrators marched on the streets of Buenos Aires to demand judicial reforms. The march was supported by Kirchnerist groups (so-called because of their support for former Presidents Néstor Kirchner and Cristina Fernández de Kirchner) and by President Alberto Fernández, a Kirchner ally who has been pushing for judicial reforms since his inauguration in 2019. Frustrations with Argentinian courts, however, transcend partisan divides. Polls indicate that about 70% of Argentinian adults believe the judiciary is corrupt, which is not very surprising given the recent string of high-profile judicial corruption scandals. Just last year, Judge Walter Bento was indicted and charged with running a large-scale corruption network. Likewise, in 2019, Judge Raúl Reynoso was sentenced to 13 years in prison for bribery and narcotrafficking. Judge Carlos Soto Dávila was similarly indicted in 2019 for accepting bribes in drug trafficking cases. Not only is there extensive evidence of judicial corruption, the Argentinian judiciary seems entirely ineffective at holding Argentina’s notoriously corrupt political class accountable: appallingly, only 1% of all corruption cases in Argentina ever result in an actual sentence.

In light of the Argentinian judiciary’s clear corruption and legitimacy problems, judicial reform seems like a step in the right direction. However, President Fernández’s plans for transforming Argentina’s judiciary, which he rearticulated this March, may actually worsen corruption rather than rectify it.

Our best indication of what President Fernández is hoping to accomplish is the package that he introduced to Argentina’s senate back in 2020, which faltered due to lack of congressional support. That bill included plans to vastly expand the federal courts by adding new tribunals and dozens of new federal judges, as well as a number of additional judges on the Supreme Court. The bill would also have restored an accusatorial criminal justice system, in which prosecutors would lead investigations and judges serve solely as impartial referees. (Argentinian courts had such a system until 2015, when former President—and anti-Kirchnerist—Mauricio Macri implemented a mixed system in which judges instigate cases and lead investigations.) Additionally, the bill would have established a Consultative Council to analyze and recommend further changes to the judiciary.

President Fernández and his allies argue that such reforms would help rectify corruption by deconcentrating the judiciary’s power and creating stricter limits on a judge’s ability to interfere in investigations. But in fact the proposals—especially the substantial expansion of the judiciary—could worsen the corruption problem by making the courts even more politically malleable. By creating dozens of new vacancies, Fernández would be able to nominate judges favorable to his own agenda and therefore exercise more control over the courts. More specifically, critics rightly argue that Fernández’s proposed reforms would almost certainly protect Fernández’s political allies, especially current Vice President (and former President) Cristina Kirchner, who has been the subject of numerous corruption investigations involving allegations of bribery, money laundering, and fraud. Notably, though none of the proposed members of Fernández’s Consultative Council are former prosecutors or judges, two of them are current defense lawyers for Cristina Kirchner, and the majority of them have expressed alliances with Kirchnerism.

Kirchner insists that she is innocent, and that she is a victim of political persecution (or “lawfare”) by Macri and her other opponents. Regardless of whether Kirchner is innocent or not, she does raise a valid point regarding the highly politicized nature of Argentina’s judiciary. But this is a problem that “goes both (all) ways.” Indeed, a longstanding trend within Argentina’s judiciary is that it tends to be lenient towards officials and allies of the governing party, and draconian against former officials after their partisan adversaries take power. Kirchner became the target of corruption investigations after Macri assumed the Presidency, but once Fernández replaced Macri, Macri himself became the subject of corruption charges.

The political weaponization of Argentina’s courts is a problem, but it does not seem to be one that Fernández’s proposed reforms would fix. Indeed, notably missing from Fernández’s 2020 judicial reform bill was any attempt to change the country’s highly partisan system for judicial appointments. For any serious attempt at judicial reform, the depolitization of Argentina’s courts should be a top priority. Three aspects of the judicial nomination process are particularly urgent:

  • First, the executive branch has too much authority over judicial nominations, which empowers Presidents to pack the courts with partisan judges who will investigate political adversaries and overlook wrongdoing by the President and his or her allies. Additionally, Presidents can exploit legal loopholes to ensure certain judges are assigned to particular courts without needing senate approval. (Senate approval is not required when appointing existing judges to new positions of the same rank.) Macri himself is guilty of using these loopholes. In fact, three of the judges overseeing the corruption cases against Kirchner were appointed by Macri in this manner. Macri was also able to appoint two Supreme Court justices without congressional approval by executive decree. Eliminating these loopholes would reduce the President’s ability to manipulate the courts without congressional oversight.
  • Second, although judicial nominees undergo review by a Magistrate Council, this council is structured to include several politicians, with a greater number of members representing the majority party, leading to undue political influence over the appointment process. The system should be reformed so that the Magistrate Council is composed entirely of independent judges and lawyers.
  • Third, Argentina’s judiciary suffers from an insular culture of nepotism, favoritism, and patronage, which undermines a meritocratic selection process and further enables the appointment of politically biased judges. Indeed, the politicized judicial appointment process results in quid pro quo relationships between judges and the politicians who appointed them, as well as the “godfathers” who gave them access to this legal “boys and girls club.” As a result, judges are selected based on who they know, as well as who they are willing to serve.

Argentina’s courts are no doubt vastly corrupt and prone to political manipulation. While reforms are certainly needed, the ones proposed by Fernández appear to be nothing more than a wolf in sheep’s clothing. The drastic expansion in the number of judges is mainly a way for Fernández (and Kirchner) to solidify their control over the courts and bend the judiciary to their will. The “Consultative Council” seems, in light of its proposed composition, like little more than a device to promote changes that will benefit Kirchner or other high-level defendants from corruption charges. The shift back to an accusatory system has teeth, but it doesn’t sufficiently get to the core of the problem. To deal with corruption in Argentina’s judiciary—and, perhaps more seriously, the political bias in how Argentina’s justice system handles corruption allegations against current and former government officials—the main focus should be not on the number of judges, but on how they are selected.

2 thoughts on “Argentinian Judicial Reform: A Wolf in Sheep’s Clothing

  1. Victoria – very interesting post! I fully agree that Argentina’s justice system should focus on the quality rather than the number of judges selected. Given that Fernandez’s party doesn’t hold the majority vote in Congress, do you think his reform will pass? What’s the expected time frame for Fernandez to push this proposal into legislation?

    • Thanks for your comment, Ella! Though this is just my own speculation, I don’t think it is likely that Fernandez will get judicial reform passed in the immediate term. Given that elections are coming up, the timeline for Fernandez to issue a new reform and for it to pass Congress is probably too tight. Additionally, as we move closer to elections (given the judiciary’s notoriety for being punitive to officials only once they step down and their opponents take over), any judicial reform may seem like a brazen by Fernandez’s to give himself a cushion of impunity in case he loses. This in turn could made judicial reforms less politically popular. Even though I don’t think it is likely Fernandez will be able to get any judicial reforms passed this term, I do think his repeated calls to action on this front will be predictive of his priorities, should he be reelected. Furthermore, his proposed reforms speak to a larger, ongoing narrative of how (or whether) to fix Argentina’s politicized courts.

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