Trampling on rights by judicial order: the risks of presidential appointments of judges in a personalist era

By Daniel Marín López*


“Millions of voters had asked for it,” claimed President Trump when nominating Neil Gorsuch as his candidate to succeed the late Judge Scalia in the United States Supreme Court. In the end, Gorsuch, as Scalia during his time, represents the most conservative tendency of U.S. justice with which Trump identifies his voters. In this way, he reaffirms that their interests will be safeguarded in such important issues like the dismantling of Obamacare or the weakening of LGBTI rights . All this with its adherence to the originalism that Scalia proclaimed , the idea that the American Constitution should be interpreted the way the founders of the country did and not as a living text that evolves over time.

Amy Davidson of The New Yorker exposed Gorsuch by showing how the judge’s past experience aligns well with the neoconservative interests of the country: “In the Hobby Lobby case, Gorsuch was part of an appellate panel that ruled in favor of the plaintiffs, the owners of a chain of craft stores who said that they had a moral objection to providing an insurance plan that covered contraception, in a decision that partially undermined the Affordable Care Act, and any number of future laws, in the name of religious freedom.

Rally to stop Gorsuch’s nomination in front of the United States Supreme Court. Photo by: Elvert Barnes

Rally to stop Gorsuch’s nomination in front of the United States Supreme Court. Photo by: Elvert Barnes

Trump defends this adherence to tradition and with the appointment of Gorsuch, gives a blow to public opinion, and at the same time to American institutionalism, signaling that a new political paradigm imposed from the White House will begin to unbalance the judicial branch (this in addition to the majorities that Trump holds in the legislature). If elected by Congress, Gorsuch would change the composition of the Court, adding a member to the more traditionalist bloc and provoking a marked turn on the more liberal tendencies. Also, 49 year-old Gorsuch can last decades in the Supreme Court given the lifelong character of the position, maintaining the legacy of millions of Trump voters.

In a country heavily tied to its institutions, this is not a minor blow and shows the commitment of the new administration and, in general of the new tendencies of populism in the world, to politicize judicial institutions, undermining their independence with majority arguments to the detriment of the guarantee of rights. This phenomenon has been understood by Professor Mary Volcansek as one where “progressively more political activities outside the legal field assume judicial qualities.” In the case of a political personalism like the one Trump incited in the margins of traditional bipartisanship, this phenomenon is accentuated.

This is not unthinkable in the American system, where the designation and election of judges to the Supreme Court, as in many other countries, is usually permeated by marked political transactions. In all cases, it is necessary to be nominated by the president and elected by the legislature, traditionally political arenas, which means that the people who reach this high judicial position usually have an ideological affiliation and are often partisan with the instances of power. In this equation, personalism or caudillismo with strongly authoritative undertones puts in extreme tension this election system in addition to its democratic foundations. By over-politicizing the courts, their work is delegitimized and the faith that people have in them. Let’s look at some recent examples.

U.S. Senator Claire McCaskill and Judge Neil Gorsuch, President Donald Trump’s Supreme Court nominee. Photo by: Senator Claire McCaskill

U.S. Senator Claire McCaskill and Judge Neil Gorsuch, President Donald Trump’s Supreme Court nominee. Photo by: Senator Claire McCaskill

The cooptation of judicial spheres has grown as the executive branch headed by a charismatic leader bursts into the political arena. In this way, some presidents like Chavez, Correa, Uribe and Evo advanced in the hemisphere at the time, similar to how Erdogan has been doing in Turkey. To date, these instances have had dire consequences for the balance of power in the countries that they govern or governed. Like Trump, they enjoy or enjoyed parliamentary majorities and, from that unbalanced power, have managed to permeate judicial institutions.

Although this permeation has many dimensions, from the constitutional model of the country to the forms of election of justices and other judges, going through the terms granted to its mandate among others(I recommend the entry of Luis Pásara and Marco Feoli on judicial independence in Latin America in the DPLFBlog), the truth is that personalism has more abruptly transformed the dependence of judges relative to the other government branches. For Mauricio García Villegas, mentioning the renowned political scientist Guillermo O’Donnell, “this is a typical feature of the delegative democracy; only the majority, in their symbolic union with the leader, matter. All institutional aspects – rule of law, balance, constitutionality, accountability, etc. – are moved to a second place or are eliminated.”

In countries with very marked personalisms, through increasingly political elections of high courts’ members, there has been a blurring of the counter power role of justice in times of political excesses. In Colombia, as Dejusticia studied in ” Majorities Without Democracy ” (p. 276), during the Uribe government, the Disciplinary Chamber of the Superior Council of the Judiciary was gradually coopted. Among other tasks, the Chamber disciplines judges and, at the time, there were hopes that it would resolve the legal actions filed by politicians who were associated to paramilitarism. He achieved this through party appointments, taking advantage of the wide nomination powers that his recent presidential re-election had given him.

Rally of ex President Uribe supporters. Photo by: Globovisión.

Rally of ex President Uribe supporters. Photo by: Globovisión.

In more extreme cases, it has been shown how the election of judges ends up being decisive for the total cooptation of the judicial branch. This was demonstrated by Venezuela, which during the Chavez era was able to change the composition of the Supreme Court in 2004. At that time, it nearly doubled the number of seats in this court so that later they were all chosen by their parliamentary majorities in the name of the “effectiveness of justice.” Today, this same Court aligns perfectly with the executive to delegitimize the work of legislative opponents (and citizens). In a more extreme point is Evo’s Bolivia, which introduced the “mixed” popular election of judges where the legislature makes an initial selection so citizens can then choose. This dynamic resulted in the magistrates being accountable to their parties and, therefore, fully entering the political arena, with all the implications that this has in terms of loyalties.

Back to the beginning. Now with the reality of Trump in power and the continuing emergence of personalisms around the world, judges are in danger and with them our rights and freedoms. For the United States it does not sound crazy, because it seems that Trump in choosing Gorsuch expects to play both sides. This begins not only by choosing a jurist within the traditionalist circle, but hopes that as Gorsuch had worked with the octogenarian Judge Kennedy (center right), the latter can retire because he feels he can leave his legacy in good hands. In this way, Trump would appoint another lifelong judge, and well, thereafter, the script will follow. This is why there is a need to start generating awareness and public opinion about the risks of the presidential appointment of judges in a populist world, beginning by reclaiming that old slogan of judicial independence.


*Daniel Marín López is a researcher at the Center for the Study of Law, Justice and Society (Dejusticia).

Featured image by: Branco