¡Reforma Ya!
Luke Pickrell discusses Mexico's attempt to democratize its judiciary
Andrés Manuel López Obrador’s six-year term as President of Mexico ends next month. López Obrador, or AMLO, will leave office with an approval rating above 70 percent. Claudia Sheinbaum, his successor, won the June election by a historic margin, taking nearly 60 percent of the vote. Following the elections, the National Regeneration Movement, or Morena, became the most powerful political party in the country. Morena now holds 23 of Mexico’s 32 governorships (including Mexico City) and an absolute majority in the Chamber of Deputies and Senate.
In February, AMLO introduced twenty constitutional amendments to “modify unpopular articles introduced during the neoliberal period” between the early 1980s and 2018. Morena’s victory in June is an overwhelming vote of confidence in the amendments. Unlike in the U.S., no Electoral College or gerrymandering gave Morena power. The party’s success reflects an actual democratic mandate.
Article 135 of the Mexican Constitution requires two-thirds of Congress and a simple majority of state legislatures to pass amendments. With congressional and state supermajorities secure, the amendments will succeed without consulting with opposition parties. Here, I’ll focus on the proposal to elect federal judges, including Supreme Court ministers, by popular vote.
First, it’s worth commenting on the Constitution. The ninth and current Constitution was approved in 1917, making it one of the world’s oldest. The document’s many social rights, such as free, mandatory, and secular education, were a model for the 1918 Russian Soviet Constitution and the 1919 Weimar Constitution. It has been amended around 240 times, including 136 between 1980 and 2016 and at least nine under López Obrador. In fact, the number of individual changes is closer to 650 since many amendments have changed more than one article, including changes to the amendment procedure itself.
Constitutional theorists call Mexico’s Constitution “rigid” because its amendment procedure is more complicated than the one employed for ordinary laws. However, considering the number of amendments (an average of 6.6 annually), the document is eminently amendable. Frequent changes are attributed to many factors, including the length and inconsistency of the document (which creates a high demand for amendments), Article 63 (which undermines the two-thirds restriction by requiring only a simple majority of members to be present for a vote), the former hegemony of a single political party (the PRI controlled close to 90 percent of seats in both chambers from 1929 to 2000), and the frequency with which political parties reach agreements on amendments.
A non-exhaustive list of the amendments includes increasing power to Indigenous communities and Afro-Mexican peoples, reaffirming the right to a pension for senior citizens, providing scholarships to students from low-income families, guaranteeing free comprehensive medical care, banning fracking and genetically modified corn, pegging increases in the minimum wage to inflation, ensuring the right to education and work, reducing the number of senators and members of congress, making the National Guard part of the army, capping the salary of public servants, eliminating several supposedly autonomous regulatory agencies, and directly electing all federal judges in district courts, circuit federal courts, and the Supreme Court.
Morena pushed as many amendments as possible through committee during the Senate’s recess that ended at the beginning of September. Any amendments that don’t pass in the next month are expected to be passed after Sheinbaum takes office.
Judicial Reform
So far, the proposal to directly elect all federal judges, including Supreme Court ministers, has received the most attention. On September 3, the Chamber of Deputies was forced to convene in a gym after protestors blocked the entrance to Congress. It voted 359-135 in favor of the reform. The amendments will now be sent to the Senate, where a vote could occur as early as Wednesday.
After passing through Congress, the reform would typically go to the state legislatures. But at the end of August, two federal judges granted a preliminary injunction blocking states from receiving the bill. The decision by the judicial branch to stop the legislature from legislating is a flagrant violation of the Constitution and amounts to what Kurt Hackbarth called a hamfisted judicial coup.
Supreme Court ministers are currently nominated by the President and approved in the Senate. Federal judges are selected by a judicial commission that uses supposedly professional exams and coursework to evaluate candidates on a meritocratic basis. In reality, the judicial branch is full of nepotism and dark money. The “coterie of elite judges,” explained Hackbarth, “cater absolutely to corporate interests and the interests of the wealthy both national and international,” including to the U.S.
Mexico’s judicial branch is notoriously biased and corrupt in a way that most people in the U.S. are only beginning to appreciate, thanks to Clarence Thomas and Samuel Alito. Hackbarth and José Luis Granados Ceja explained that most people in Mexico know better than to swallow the lie of an apolitical Supreme Court that just calls “balls and strikes.” This bias was recently made clear by the two judges who accepted injunctions against the reforms and by Supreme Court President Norma Piña, who supported protestors who blocked the doors of Congress.
The judiciary has interfered in many of López Obrador’s reforms, including changes to the Electricity Industry Law that frustrated private companies. Over the past six years, the courts have routinely blocked arrest warrants to protect influential people, granted injunctions against significant projects, and released convicted criminals. “You’d never seen the Mexican Supreme Court so active until AMLO and Morena took power,” said Hackbarth.
The judicial amendment has four principal goals. First, “integrating” the Supreme Court with the nation to make it more “efficient, austere, and transparent.” This would be done by reducing the number of ministers from 11 to nine, reducing the service period from 15 to 12 years, removing the two private chambers and introducing public sessions, eliminating the life pension for ministers, and capping ministers’ salaries and benefits at their constitutional limit (effectively a reduction since ministers currently make about double the President’s salary).
Second, the popular election of judges. Voters would be presented with a slate of up to 30 candidates, with up to 10 nominated by a two-thirds majority in Congress (five from each chamber), up to 10 by the Supreme Court, and the remaining 10 by the President. Each candidate would have to meet a series of requirements. During a morning press conference, AMLO said that a change is needed to “clean and purify” the judicial branch of corruption and nepotism. Popular elections, he explained, would help ministers recognize their constituency and act as representatives of the people’s interests and not the interests of a wealthy and powerful minority.
Third, the current Council of the Federal Judiciary would be replaced with a popularly elected five-magistrate body. The Council of the Federal Judiciary would receive and investigate complaints from any individual citizen or authority about federal judges. Finally, a set of new rules would mandate faster response and decision times for judges.
If the amendments pass, Mexico would be the only country in the world that elects its federal judges through a popular vote on such a scale (Bolivia directly elects its federal judges but is a much smaller country). Overall, judicial reform aims to create a more efficient and effective federal judicial branch that is more professional and closer to the people. Many think these changes will generate a better justice system.
The Last Hiding Spot
The public is overwhelmingly supportive of the proposed judicial reforms. The support “makes a lot of sense,” said Hackbarth: “If you've ever had to deal with the Judiciary in Mexico, from anything to a minor infraction up to a federal case, you know what's involved,” including cases that can go on for years and obscene levels of corruption. López Obrador conducted an informal but meaningful measure of support during his sixth and final presidential address (Informe de Gobierno), asking everyone in attendance to raise their hand if they preferred ministers elected by the President and Senate or by the people. Cheers for “el pueblo” were deafening.
On the day the reform was passed in the Chamber of Deputies, students and faculty at the Universidad Nacional Autónoma de México (UNAM), Mexico’s most prestigious public university, held a rally in support of the amendment. Attendees rebutted the mainstream media narrative that students are unanimously against the reforms.
Some questioned how a judicial system that destroys the environment and is involved in widespread disappearances (desaparecidos) can be supported. Others denounced U.S. intervention, including a statement by U.S. Ambassador Ken Salazar that “popular direct election of judges is a major risk to the functioning of Mexico’s democracy.” Salazar has been quiet since getting scolded for his comments but still doesn’t seem to understand the meaning of sovereignty.
Other rallies have been held in front of the Supreme Court. Some described an ethical duty to discuss the Constitution and a desire to have a voice in political matters. Others spoke about the lies and misinformation spread about the reform by the mainstream media, how judges, especially Supreme Court President Piña, protect the rich while living lavish lifestyles on the public till, and the necessity of creating a genuinely meritocratic and democratic selection system.
Others called the court the “right’s last hiding spot,” el último escondite. “June 2 delivered a clear mandate,” said one marcher. The country “wants the movement to move forward, and that is why the Congress of The Union approved the reform and is now moving it to the Senate of the Republic, where also there is a clear popular mandate.”
Finally, the first Hemispheric Conference of Independent Journalists (HMIJ) was held at the National Palace in Mexico City at the end of August, and the vast majority of participants supported the constitutional amendments and judicial reforms. I attended the conference as a representative of the Democratic Constitution Blog. Some of the people I met were surprised to learn that people in the U.S. also favor a democratic legal system.
Most critics argue that electing the judiciary will undermine the separation of powers, allow anyone to become a judge, erode the independent judiciary by politicizing the court, spread corruption, and push Mexico toward authoritarianism. Many people, including López Obrador, have presented well-reasoned (if obvious) counterarguments.
The legislative branch is doing what the Constitution tasks it with doing: legislating. If anyone is undermining the separation of powers, it’s the judicial branch, which blocked the doors of Congress and issued unconstitutional injunctions. As to anyone being able to work as a judge — why not? Every other political position, including the President and members of Congress, is eligible for popular election so long as they meet specific criteria. Why should federal judges be exempt from a popular vote?
Regarding a supposedly independent and apolitical Supreme Court and concerns about corruption, the current court is already corrupt and anything but independent and apolitical. Those who oppose the reform “have no moral grounds because it is public knowledge that most Mexicans know that corruption prevails in the judiciary,” said López Obrador. As anyone in the U.S. can appreciate, the only question is not whether courts are political but what power they have and whose interests they serve.
Finally, concerns about authoritarianism reveal a distrust of majority rule and democracy in general. Where is the authoritarianism if the people elect judges, magistrates, and ministers? As López Obrador noted, how can the majority of people demanding a voice in politics be considered “authoritarian”?
No Democracy Here
The first article I read about the judicial amendment cited Supreme Court Chief Justice John Roberts’ argument that judges, like umpires, “don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.” However, just because one idea about the Supreme Court has widespread legitimacy in one country doesn’t mean it has the same power in another.
One question, however, is just how much legitimacy the idea of an independent judiciary still has in the U.S. As we prepare to celebrate National Constitution Day with cake cuttings and speeches by Supreme Court justices, few people trust the court.
Alexandria Ocasio-Cortez has said the Supreme Court is “Captured and corrupted by money and extremism” and “a threat not just to the American way of life and American democracy, but… to our lives.” President Biden proposed court reforms that mirror some of López Obrador’s proposals. These include a constitutional amendment specifying that presidents are not immune from crimes they commit while in office, an enforceable code of ethics, and 18-year term limits. Notably absent is the popular election of justices. All three reforms are supported by most Americans, including conservative and liberal constitutional scholars. However, unlike AMLO, Biden has almost no chance of getting his reforms through Congress.
Still, one can dream. Imagine if justices served for 12 years instead of a lifetime. Imagine if an elected disciplinary body could get rid of Clarence Thomas for taking millions of dollars in bribes from a collector of Nazi paraphernalia and Samuel Alito for supporting Christian Nationalism and an insurrection to overturn the 2020 elections. What a concept.
Another question is whether the U.S. should be a model for other countries. During his final presidential address, AMLO cited Alexis de Tocqueville’s 1835 book Democracy in America while arguing that democracy in the U.S. began with the election of judges. Some defenders of the judicial amendment have also pointed to their northern neighbor as an example of a long-running model for judicial elections.
The comparison is sound to the extent that thirty-nine states in the U.S. carry out judicial elections in some form, but obviously unsound regarding the federal judiciary. Not only are federal judges unelected, but the Electoral College and absurdly malapportioned Senate means that five of today’s six Republican justices were appointed by presidents who lost the popular vote, and four of those justices were confirmed by a majority of Republican senators representing a minority of Americans. Therefore, references to the U.S. should be made with extreme caution. The U.S. cannot be a model for countries aspiring toward democracy for the simple but important reason that it is not itself a democracy.
The U.S. is stuck. Up north, popular opinion doesn’t translate into change. Gun legislation? Nope. Money for healthcare and education? Nice try. Reforming the police? Nuh-uh. A constitutional amendment? The Constitution blocks the way. No wonder both political parties are widely despised, and politics generally makes people cringe.
Meanwhile, Mexico is on the move. Many think AMLO fulfilled his 2018 campaign promise of a Fourth Transformation (4T) and believe Sheinbaum will continue to empower el pueblo by building the 4T’s “second story.” The ongoing attempt to amend the Constitution is part of that process, and every supporter understands democracy is the only way forward.
Our Task
Morena is a political movement fighting for democratic constitutional reforms. It’s also the dominant political party, meaning it has the necessary power — crucial in politics — to carry out its agenda. Mexico’s political institutions reflect majority opinion; Morena is in power because the country’s political system allows third parties to grow (it’s only ten years old) and because most people support its policies, including democratizing the judiciary. Not so up north; our political institutions privilege minorities, underrepresent majorities, and ensure two-party dominance.
Many people have known for a long time that the Constitution is a mess, but only recently has the idea started to enter mainstream discourse. Of course, the question is who will do anything about it. In Mexico, it’s Morena. No comparable force exists in the U.S. The Democratic Party, as it currently exists, certainly isn’t going to lead the charge.
No democratic movement exists in the U.S. — let alone one powerful enough to overcome the first-past-the-post system and the Constitution’s checks and balances and actually enact its agenda. Our task is to continue raising the issue of the Constitution. Big things take time, and our work is only beginning.