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Guest Essay
Electing Judges in Mexico? It’s a Bad Idea.
Amrit Singh and
Ms. Singh is a professor at Stanford Law School and the executive director of the school’s Rule of Law Impact Lab. Ms. Garcia is an expert adviser to the lab.
For weeks, Mexico has been in turmoil over President Andrés Manuel López Obrador’s proposed constitutional amendment for judges to be elected by popular vote. Fifty-five thousand judicial employees went on strike as legislators pushed the law forward; the peso fell, and international banks issued dire warnings about the effect of the proposal on the economy.
Even the U.S. ambassador to Mexico, Ken Salazar, issued an unusual warning. The plan, he said late last month, presented “a major risk to the functioning of Mexico’s democracy.” The president responded by angrily announcing a “pause” of diplomatic relations with the U.S. Embassy. A similar spat ensued with Canada.
But Mr. López Obrador’s successor, President-elect Claudia Sheinbaum, who takes office on Oct. 1, has had a more reasonable response. Although she has consistently supported the scheme, Ms. Sheinbaum instructed Mexico’s new Congress to deliberate more on the plan, rather than fast-tracking it as the president and his allies are urging. Ricardo Monreal, the majority leader in the lower house of Congress, suggested it could be approved as soon as Sept. 8.
Mexico’s leaders should do the right thing and abandon the plan altogether, given the harm it could do to the nation. If adopted, it would politicize the judiciary beyond recognition and render it toothless for checking the abuse of power. It would institutionalize the power that interest groups could exercise over the entire judiciary.
Electing judges could incentivize them to issue decisions to win votes and satisfy political constituencies instead of impartially deciding cases based solely on the facts and the law. A politically captured judiciary incapable of impartially protecting property rights would be a disaster for business confidence and private domestic and foreign investment. More ominously, it could open the door to organized crime’s control of the judiciary and undermine the very foundation of the rule of law in Mexico.
Mr. López Obrador’s constitutional reform proposal calls for nearly all judges, including those who will sit on the Supreme Court, to be elected. Under the current system, candidates for federal judgeships in Mexico must pass a public exam, undergo training and be evaluated by the Federal Judicial Council, an oversight body, which then appoints them. Most nonfederal judges are nominated by state governors and approved by state legislatures; in a few states, candidates are evaluated and appointed as judges by state judicial councils. Supreme Court judges are nominated by the president and approved by the Senate.
The president’s plan claims that it will democratize justice and counter “corruption,” “impunity,” “vested power groups” and “the absence of true independence of the institutions in charge of imparting justice.” He has cited the election of some judges in the United States to justify the plan.
But the United States’ experience shows that electing judges would only make these problems much worse in Mexico. Though all federal judges in the United States are appointed, most state judges are elected by popular vote. Empirical studies confirm that campaign contributions predispose judges to rule in favor of their donors, especially when they seek re-election. Studies also show that judges are less likely to rule in favor of defendants and more likely to impose harsher sentences close to elections.
The former U.S. Supreme Court justice Sandra Day O’Connor — who herself once served as an elected state court judge — became a tireless advocate of the merit selection of state judges because she knew that voting for judges left them beholden to the “corrupting influence” of interest groups. The former U.S. Supreme Court justice John Paul Stevens told the American Bar Association that judicial elections were “profoundly unwise” and akin to “allowing football fans to elect the referees.”
The American Bar Association has long supported merit selection systems for selecting state judges on the ground that “the administration of justice should not turn on the outcome of popularity contests.” It has warned of the “corrosive effect of money on judicial election campaigns,” in which parties interested in the outcomes of cases could try to “buy advantage in the courtroom by influencing at the ballot box who will be judges.”
The influence of money and power is no less corrupting in Mexico than in the United States. Indeed, Mexico is particularly vulnerable to such influence because of the control that organized crime groups exercise in so much of the country.
Mexico’s current system for selecting federal judges is far from perfect, and could be improved by making it more transparent and accessible to a broader range of candidates. But replacing that system with judicial elections would allow wholly unqualified lawyers to become judges if they simply receive enough votes. Unlike in the United States, Mexico does not require a bar exam to practice law. The president’s plan calls for no legal experience for trial court judges and only three years of experience for appeals court judges. It is unclear how voters would even learn about, let alone evaluate, the candidates’ qualifications.
The plan would also create a judicial disciplinary tribunal tasked with sanctioning judges, whose members are elected by popular vote with terms that coincide with the six-year presidential term and whose decisions would be unappealable. It would also tie judges’ salaries to whatever the president’s salary is. Both measures would further undermine the independence of the judiciary by politicizing its oversight and making it beholden to the executive branch.
Our recent report, which explains how voting for federal judges in Mexico would compromise their independence, notes that the proposal’s threat to the rule of law does not come in a vacuum. The López Obrador government has attacked other independent institutions like the National Electoral Institute, which oversees elections, and the National Institute for Transparency, which guarantees access to public information and the protection of personal data. It has also gone after the independent federal agencies overseeing antitrust and communications matters.
It has expanded executive power by systematically shifting control of civilian functions — operating trains, ports, airlines, airports and customs — to the military in the name of reducing corruption. It is also proposing to transfer the National Guard to military control despite a previous Supreme Court ruling deeming the move unconstitutional. The new judiciary project seems to follow this pattern: to eliminate the separation of powers and the system of checks and balances crucial for the survival of a constitutional democracy.
President López Obrador is certainly not the only world leader who is taking a swing at judicial independence. Autocratic-minded leaders focused on consolidating their own power — including in El Salvador, Hungary, Indonesia, Israel, Poland, Tunisia, Turkey, Venezuela and Zimbabwe — have also sought to undermine judiciaries that stood in their way.
Unlike some countries on that list, Mexico is still a functional, if imperfect, democracy. Whether that remains the case now lies in the hands of its new Congress and President-elect Sheinbaum. In an address to the nation on Sunday, Mr. López Obrador said, “We are living in an authentic democracy, building a new homeland.” But, consistent with his systematic attacks on checks and balances, his project to elect judges could lead to the death of democracy in Mexico.
Amrit Singh is a professor at Stanford Law School and the executive director of the school’s Rule of Law Impact Lab. Adriana Garcia is an expert adviser to the lab.
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