A determining factor in the decline of our country has been the low level of judicial institutions. The stability or instability of the Supreme Court is an empirical fact confirmed by the thesis of Max Weber, who already at the beginning of the 20th century pointed out that it was the essential condition for development, a hypothesis that has been confirmed in the Western world.
In the Argentine case, President Bartolomé Miter established the Supreme Court in 1863. Until 1947 it always had five members, none were removed due to impeachment, and for twenty-five years, from the second Roca presidency to the first Yrigoyen, there was the same president. of the highest court: Dr. Antonio Bermejo, who held office with seven constitutional presidents. This situation broke in 1947, when Peronism forced the resignation of four of the members of the Court.
From then on, in the last 85 years, the Supreme Court was modified for political reasons ten times. The de facto government of 1955 removed the Court of Perón and appointed another aligned with the new situation. President Frondizi, what happens, raises the members of the highest court from five to seven, to gain influence on him. The de facto government that took over in 1966 removed the entire Court of President Arturo Illia and appointed a new one. The government of Héctor J. Cámpora, upon taking office in 1973, also renewed all the members of the highest court, who in turn were replaced by the de facto government that took office in 1976. President Alfonsín, upon taking office, also appointed a new cut. Although these are different situations and with different degrees of justification, this does not mean that it ceases to constitute an overall picture.
So far, the phenomenon appears closely linked to the political-institutional instability that revolved around the military coups. But President Menem, at the beginning of his government, raised the members of the Court from five to nine to align it with the new situation, and especially with his economic policy. In 1993, the composition of the Court is part of the Pact of Olivos. The two most important political leaders of the moment, Carlos Menem and Raúl Alfonsín, cause resignations in the Court and renew it, leaving five members in the orbit of the ruling party and four in that of the opposition. When President Néstor Kirchner takes office, he promotes resignations in the highest court, impeaches other members and once again reduces the number of members from nine to five.
The political instability suffered by the Supreme Court in terms of its integration between 1947 and 2004 was the main cause of the failure of our country, in concurrence with other economic and political theses.
That in the last 18 years this phenomenon has not occurred again is an encouraging fact, which must be valued when discussing the causes of the decline and failure of Argentina.
The request for impeachment of the four members of the Supreme Court by President Alberto Fernández implies returning to the instability in the composition of the highest court, generated by political causes.
When President Mauricio Macri took office, on December 10, 2015, he ran the risk of making the mistake of returning to the politicization of the Supreme Court, when he proposed to fill the two vacancies that existed through a DNU, which fortunately and corrected quickly. They were then covered with the agreement of the Senate, appointing Horacio Rosatti and Carlos Roszenkrantz. The three remaining members were Ricardo Lorenzetti, Elena Highton de Nolasco (both appointed during the Néstor Kirchner government) and Juan Carlos Maqueda (during the Duhalde government). There was then a balanced Court in terms of the presidents who proposed the names, who had the necessary agreement of the Senate. Highton de Nolasco’s resignation during the Macri government left a vacancy, which political differences in the context of the “crack” prevented them from being filled.
It does not seem easy for the Executive Branch to have the political capacity to achieve two-thirds in both chambers to successfully advance in the impeachment process. Not having been able to fill the vacancy during the three years of Alberto Fernández’s government is a clear anticipation of this.
* Director of the Union Study Center for the New Majority.
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