The candidates to occupy the position of minister of the Supreme Court of Justice of the Nation (SCJN), who are part of the shortlist sent to the Senate by the president Andrés Manuel López Obrador, They were not liked by the opposition benches in the upper house, so -predictably- the triad proposed by the president will be rejected, since Morena does not have the qualified majority required for that designation.
Bertha María Alcalde Luján, Lenia Batres Guadarramaand María Estela Ríos González, the proposals to replace the minister Arturo Zaldívar, They are not suitable to be constitutional judges, because their partisan profile, as founders of Morena and collaborators of the president, is not suitable to serve as the last interpreters of the Magna Carta.
Although the head of the Executive Branch, by proposing the shortlist, is exercising a discretionary and sovereign power contemplated in the Constitution, as head of the Mexican State he has the responsibility – before all citizens – to present to the Senate a list of three people who are suitable to serve as ministers of the Court.
That is, their proposals must fall to lawyers who have the capacity to operate competently in a task that requires, in addition to experience, a high qualification in constitutional law and human rights.
Additionally, The president is obliged in legal terms to respect the division of powers and the independence of the Judiciary, Therefore, proposing women who have been his subordinates shows the deliberate intention of subjecting the Court to the interests of his government.
Second shortlist or presidential designation
The procedure for the Senate to appoint the next minister of the Court, after receiving the shortlist from the Executive, is as follows: The Justice Commission of the Upper House must verify that the proposed people meet the requirements established in article 95 of the Constitution.
This paragraph indicates that the ministers of the Court must be Mexican by birth; be at least 35 years old; possess a law degree, with a minimum age of ten years; enjoy a good reputation, and not have been convicted of any crime that warrants a corporal punishment of more than one year in prison.
Furthermore, the ministers of the Supreme Court must not have been secretaries of State, Attorney General, senator or deputy, or head of the Executive Branch of any entity, during the year prior to the day of appointment, and must prove that they have resided in the country. During the past two years.
Considering the above, the Justice Commission will have to call the candidates to appear and answer questions. After this, this collegiate body must approve an opinion indicating whether the members of the shortlist comply with the constitutional requirements already indicated.
This document, if endorsed by the aforementioned Commission, must be published in the Senate Gazette – at least 24 hours before – the plenary session of the Upper House.
In that session, the senators must approve the opinion of the Commission, and then call the candidates, who will have to explain, before all the senators, the reasons why they consider themselves suitable to be ministers of the Supreme Court.
Once the presentations have been made clear, the senatorial plenary session must vote for one of the candidates, who will have to obtain the endorsement of two thirds of the senators present. If this qualified majority is not reached in a first vote, legislators may decide to hold a second vote.
In the event that the required majority is not achieved in any of the votes, the shortlist will be considered rejected in its entirety, so the president must send a new proposal, with people different from those in the first shortlist.
The second triad sent by the president must follow the same steps as the first in the Justice Commission, until reaching the plenary vote.
If this second shortlist is also rejected, as it is not possible for a candidate to have the vote of two-thirds of the senators present, It will be the president who will designate the next minister of the Court from among the three lawyers on the shortlist that he proposed.
Requirements and distinctions
Formally, Bertha María Alcalde Luján, today legal advisor to the Federal Commission for Protection against Health Risks (Cofepris), and Lenia Batres Guadarrama, deputy advisor for Legislation of the President’s Legal Department, comply with the mandatory profile established by the Constitution.
Instead, María Estela Ríos González, current head of the Legal Department of the presidency, “has the rank of head of the Secretary of State”, in accordance with article 4 of the Internal Regulations of the Legal Department of the Federal Executive, and section 26 of the Organic Law of the Administration Federal Public.
That is to say, the quality of the position that she currently holds, having the same hierarchy and legal treatment as a Secretary of State, is an impediment to being a Minister of the Court, since to exercise that function it is necessary “not to have been Secretary of State.” ” during the year prior to the appointment, as indicated in section VI of article 95 of the constitution.
On the other hand, the three lawyers on the shortlist, having no work history or experience in the administration of justice, must then comply with the characteristics indicated in the last paragraph of article 95 of the Constitution.
That is, in their career as lawyers, they must have “distinguished themselves by their honorability, competence and professional background in the exercise of legal activity.”
In this case, given that her honorability cannot be questioned, unless there is evidence to the contrary, unfortunately, two of the proposed candidates do not possess these last two characteristics, since Neither Mayor Luján nor Batres Guadarrama possess – in a distinguished manner – competence and background sufficient in the practice of law.
Both stand out for their partisan militancy, for their political activities and, together with Ríos González, for their collaboration with the president’s project in positions that are part of the federal Executive Branch, all very respectable activities, but insufficient and not at all suitable for joining the highest court in the country.
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Surya Palacios Journalist and lawyer, specialist in legal and human rights analysis. She has been a reporter, radio host and editor.