The nomination of justices to the Supreme Court of Justice is a political decision that belongs to the President of the Nation, confirmed or not by the Senate, but it is not exempt from an unavoidable moral standard under our Constitution: the selection of candidates morally upright and technically fit for the position.
Regarding the exercise of such presidential power, in the United States it is common for a relevant portion of the electorate to cast their votes at the polls thinking about vacancies in the Supreme Court of Justice. From this perspective, party platforms play a decisive role, and, in particular, the eventual commitment of the presidential candidate to nominate justices to the highest court with certain characteristics or by virtue of a predetermined list.
Why? Because it is impossible under the republican system of government to defend and advance core values, ideals and principles without an independent –read moral and competent– judiciary. It is surprising that in Argentina this feature is not generally highlighted in presidential elections with the required emphasis, perhaps because the vernacular civic culture forgets the premise that supports such a practice: it is not possible to live in freedom without justice protecting it, nor a just society is possible without a free life to achieve it.
Not so few journalistic articles have already been written about the nominations of Ariel Lijo and Manuel García Mansilla by President Javier Milei to fill in the Supreme Court of Justice, respectively, the vacancy left by Justice Elena Highton de Nolasco and the vacancy that will be left by Justice Juan Carlos Maqueda by year-end.
The nomination of Manuel García Mansilla has generated wide endorsements that we share, since he is a man of integrity with relevant professional experience and a well-established academic career. However, the selection of federal judge Ariel Lijo has raised significant ethical questions that call us to object his nomination, especially regarding his professional work within the judiciary and in some way due to his lack of academic acumen and ancillary.
In this regard, it is worth remembering that in the United States one of the criticisms received by the former dean of Harvard Law School, Elena Kagan, when President Barack Obama nominated her to the Supreme Court of Justice to replace Justice John Paul Stevens, was precisely his lack of judicial experience. The vast majority of his professional career was dedicated to academia and legal theory. The point is that the opposition will always resort to various criteria or standards when the candidate is not to their liking. In this sense, it is feasible to argue that a recent letter from academics against judge Lijo was in fact written by those who lack the required professional experience for such position for the simple fact of being only academics –in the manner of a surgeon who never used a scalpel–.
Thus, it is worth mentioning that the judge and academic Robert H. Bork was subject to an all-out war of personal discredit in his nomination process to the Supreme Court of Justice of the United States, by the political opposition, primarily due to his pro-life stance on the unborn and his vision regarding the right to privacy under the North American Magna Carta. The failed nomination of this qualified candidate by President Ronald Reagan irrevocably marked, for reasons of mere ideological overtones, the process of selecting justices to the Supreme Court –and to a certain extent of federal judges– in this nation.
This type of “crack” should not be replicated in our country and the deplorable political attitude of excoriating candidates to the Supreme Court of Justice for their legal positions, as if it were a media lynching, cannot be tolerated either. Presidential elections have political consequences, and one of them is the decision of the President of the Nation to nominate candidates to the Supreme Court of Justice who share his values, ideals and principles. The structure of the republican system works in this way. And the election of President Milei and his position on the vacancies of the Supreme Court of Justice is not an exception to the rule, if it were not for the ethical or moral considerations herein.
Furthermore, the fact that society aspires to a civilized behavior among the members of the Supreme Court does not mean President Milei’s decision is subject to prior scrutiny by its current members –something inappropriate and a violation of the system of checks and balances–, rather focused on the candidate’s moral aptitudes that command the respect and why not the admiration of his potential colleagues. The strength of a person’s moral character contributes to some long-expected consensus in the tribunal at the top of the Judicial Branch.
Unfortunately, the relevant objections to the nomination of federal judge Lijo refer to his moral integrity for the position at stake. Note that it is feasible to speak of moral integrity as part of the required suitability, since experience and technical knowledge do not provide in themselves all the virtues, aptitudes and talents for this position.
Article 16 of the National Constitution on suitability as the only requirement for public employment goes back to Pedro de Ángelis’ project: “Argentineans are equal under the law, and can obtain the public jobs to which they aspire, if they have the necessary skills to perform them ”–; and to article VI of the Declaration of the Rights of Man and of the Citizen of 1789: “The law is the expression of the general will… All citizens, being equal in their eyes, are equally admissible to all dignities, positions and public jobs, according to their capacity and without other distinctions than those of their virtues and talents . Without a doubt, suitability entails virtue, that is, the unavoidable moral aptitude for the role and functions of a member of the Supreme Court of Justice. obtain the public jobs to which they aspire, if they have the necessary skills to perform them ”–; and to article VI of the Declaration of the Rights of Man and of the Citizen of 1789: “The law is the expression of the general will… All citizens, being equal in their eyes, are equally admissible to all dignities, positions and public jobs, according to their capacity and without other distinctions than those of their virtues and talents . Without a doubt, suitability entails virtue, that is, the unavoidable moral aptitude for the role and functions of a member of the Supreme Court of Justice.
Within this context, it is then convenient to address the case of federal judge Martin Manton and his frustrated nomination to the Supreme Court of Justice of the United States by then President Warren G. Harding (1921-1923), due to ethical objections to his judicial performance. The young lawyer Manton had proven to be a man of great ambition and skills, from a political and technical standpoint, to become a judge. The aforesaid translated into his meteoric rise in the judicial career: he became the youngest federal judge at any level in the entire history of the United States.
At that time, it was still customary for the political minority to have no less than three members out of a total of nine in the Supreme Court of Justice. Hence, President Harding wanted to fill a third vacancy with a candidate from the minority-opposition, and Judge Manton sounded like the man for the job. Today, this practice has become obsolete as far as the composition of the Supreme Court of Justice resembles a war bounty that is usually won or lost at the ideological level with the presidential election. For both good and bad reasons, a lot depends on it.
Finally, Judge Manton ended up resigning from his judgeship at the federal court of appeals –once confronted with his imminent dismissal– and faced the well-deserved infamy of prison due to some of his crimes. It is estimated that his illicit enrichment almost a hundred years ago would amount to US$40 million now.
Curiously, the political opposition to Manton’s nomination –or the most relevant one– came from the Chief Justice of the Supreme Court and former President of the Nation William Taft. In Argentina, a similar figure is represented by José Figueroa Alcorta, who was President of the Nation and of the Supreme Court of Justice. And both historical figures placed special emphasis on justice and freedom as values to preserve for the future.
“I love judges, and I love courts. They are my ideals, that typify on earth what we shall meet hereafter in heaven under a just God.”, President William Howard Taft , cited in Mason: William Howard Taft , III The Justices of the Supreme Court 1789-1978, 2105, L. Friedman & F. Israel ed. (1980). President William Howard Taft , cited in Mason: William Howard Taft , III The Justices of the Supreme Court 1789-1978, 2105, L. Friedman & F. Israel ed. (1980).
“… And suspend the task for a moment, to contemplate it, turning your gaze towards the sunset, you admire and bless the past, the genesis of pain and heroism, sacrifices and glory, which forged in the principles of freedom and justice the pedestal of the Homeland; while the opposite orientation points to the dawn of the new era, the current work consolidated and magnified in the future by the effort of successive generations, increased and happy in the peace of work, in the harmony of law and justice, in the solidarity of ideal and action, in the imperishable bond of common destinies and higher desires.”, President José Figueroa Alcorta, on the occasion of the “Centennial Address for the May Revolution, Landmark, May 25, 1910.” successive generations, increased and happy in the peace of work, in the harmony of law and justice, in the solidarity of ideal and action, in the imperishable bond of common destinies and higher desires.”, President José Figueroa Alcorta, on the occasion of the “Centennial Address for the May Revolution, Landmark, May 25, 1910.”
Looking at it that way, the unquantifiable value of freedom –never its “price”– finds its best protection and ally in the concept and fulfillment of justice, thus preventing both from being at the mercy of long pockets with spurious interests from people with no credibility and lack of honesty.
Unquestionably, freedom is an intangible highly tangible in the lives of all Argentineans, which is passed down from generation to generation and it is sustained by proper education and moral formation at its roots. Ultimately, the just person is good, decent and honest by free and personal choice. Argentineans cannot expect less than this bar from a Justice of the Supreme Court. It is never too late, as long as freedom and justice are here subject to a presidential decision of supreme moral nature.
Fernando Irazu, President, AR4ARG.
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