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OPINION AND ANALYSIS | 21-01-2023 06:56

Court between a rock and a hard place

Both the 1947 and the 2002-2003 purges accomplished their missions but we may well be taking current events too seriously if we expect a similar outcome now.

Three strikes and you’re out might be the baseball norm but this third attempt by an elected government to remove Supreme Court justices commencing next week actually seems the least likely to see anybody out, in contrast to the success of the two previous purges.

All three purges have been the work of Peronist governments. In 1947 the entire Supreme Court bar one was removed by the Senate after having been impeached by the incoming Peronist régime the previous year on charges of co-existing with the governments since the 1930 coup. The purges of 2002-2003 were an in-house Peronist affair with the Peronist administrations of Eduardo Duhalde and Néstor Kirchner moving to reverse the colonisation of the top tribunal by their Peronist predecessor Carlos Menem when he packed the Supreme Court in 1990 by expanding its numbers to nine justices. Despite the “begone with them all” public war-cry of those years, these purges were partial – thus Carlos Fayt (named by Raúl Alfonsín upon the return of democracy in 1983) remained almost until his death at the age of 98 in 2016.

The newsroom memories of this columnist obviously cannot claim to stretch back to 1947 preceding his birth. Unlike President Alberto Fernández today, Juan Domingo Perón was careful to keep his distance from the forefront of the onslaught against the Supreme Court. The impeachment was presented by the Peronist caucus in Congress and based on accusations previously lodged by the prestigious criminal lawyer Octavio González Roura in 1945 (an independent source, something akin to today’s efforts of some government supporters to ride the 2021 impeachment request against Supreme Court justice Ricardo Lorenzetti by Elisa Carrió, a co-founder of the opposition coalition). Only Tomás Casares (appointed in 1944 by the Edelmiro Farrell presidency, of which Perón was vice-president, War minister and Labour secretary) was spared this purge.

Unlike 1947, plenty of direct memories about the rise and fall of Menem’s packed Supreme Court between 1990 and 2003. The Duhalde-Kirchner purges sought to restore the Supreme Court to its original format and were thus the mirror images of the latter’s rulings last year to return the Council of Magistrates to its original format (now featuring among the grounds for impeachment) – in this sense those initiatives had a legitimacy which the current offensive lacks. Furthermore, the objections to the Supreme Court back then were also institutional and structural, not personal or raised against the content of rulings – they thus also enjoyed the support of legislators who feature in Juntos por el Cambio ranks today (for example, the progressive ex-Radical Margarita Stolbizer, who in those years sat on the Impeachment Committee which she chaired back in 2000).

But perhaps the most significant difference between then and now is that whereas most people sense that this assault on the Supreme Court carries the not-so-hidden agenda of rewiring the judicial branch in order to secure impunity for Kirchnerite corruption, the demolition job against the Supreme Court at the start of this century had the opposite aim of dismantling the “automatic majority” created by Menem in order to cover up his corruption. That Supreme Court was thus under attack for what it failed to do, not for what it did in terms of rulings.

Even with the broad anti-Menem consensus of the years following the traumatic collapse of convertibility as from 2001, overhauling the Supreme Court was not an easy process. In 2002 the Duhalde government impeached all nine justices (even those predating Menem, like Fayt) but failed to gain the requisite two-thirds majority to remove any of them – there were substantial majorities against six of the justices (including five Menem appointees) but with almost 100 of the 257 deputies voting against in each case while two justices (Enrique Petracchi and Gustavo Bossert) even had over two-thirds of the vote in their favour. But Bossert resigned a few days later due to “moral fatigue” despite 168 deputies voting against his removal.

Sensing that a blanket assault permitted the rotten apples to cover themselves with their worthier colleagues, Kirchner opted for a more selective approach when he reached the presidency in 2003 – he singled out four of the five justices handpicked by Menem to give himself an “automatic majority” (Julio Nazareno, Adolfo Vázquez, Guillermo López and Eduardo Moliné O’Connor) for removal in order to return the Supreme Court to its original size of five members. The first three resigned to avoid the humiliation of Senate impeachment, which was Moliné O’Connor’s fate towards the end of the year. In 2005 the Senate ousted the fifth remaining Menem-appointed justice Antonio Boggiano (who could not be expelled previously in order not to leave the Supreme Court below strength) for malfeasance. Like Perón before him (and unlike President Fernández), Kirchner was happy to leave the dirty work of impeachment to Congress rather than claim the limelight.

For better or for worse, both the 1947 and the 2002-2003 purges accomplished their missions but we may well be taking current events too seriously if we expect a similar outcome now. The government has even worse numbers than Duhalde back in 2002 to take impeachment beyond the committee stage and nor does it have such a compelling case (is 2.95 percent of the federal revenue-sharing for a district with around seven percent of this country’s population really so wildly excessive?). Perhaps these overrated electoral fireworks do not deserve so much attention – nor justify bringing Congress to a complete halt, something for the opposition to ponder.

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