Circumstance has left the government in a race against time to deal with a key bottleneck: naming 150 judges across all levels and jurisdictions has become a millstone around its neck. The issue is being watched closely, not only by the judiciary, but also by a business community faced with the prospect of sinking cash into a country where the courts are looking thin — fragile, even. Many are reaching the worrying conclusion that decrees are the only way out.

Last week, Peronist Senator Lucía Corpacci signed off on Judge Ariel Lijo, in what was read as a friendly gesture from Cristina Kirchner to President Javier Milei. It had the consequence of sowing chaos, putting pressure on the executive branch. For three weeks, the government has been saying that it will send the profiles of 150 judges to the Senate, which would then require approval by simple majority. However, Congress could break up for the summer and go to extraordinary sessions with no plan in place. In this context, the threat that the government could sign 150 decrees to fill those vacancies in one fell swoop is spreading like wildfire. And given the libertarian government’s dim regard for institutionality, that threat is credible.

The world of the judiciary believes that Cristina’s move leaves Milei with no option but to write the decree and name Ariel Lijo and Manuel García Mansilla in commissions. Lijo has made it known that he would not agree to enter the Supreme Court under those circumstances, while García Mansilla is pushing for it.

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The libertarians say that if they do not resort to that means, the prospective Justice would be wickedly renamed “Manuel García Sinsilla” (“No seat” in Spanish). Otherwise, the winner would be Cristina Kirchner, who, with her surprise move, would have managed to see their applications fly off into the unknown due to time pressures.

Cristina Kirchner connivance?

Her own legal embroglio notwithstanding, Cristina’s ability to entangle the judicial situation for the libertarians has prompted timid, unspeakable admiration in the courts. Some derisively say they’re both shouting “Long live freedom, dammit” — and Cristina is referring to her own. The executive has been dragged into that fight, having to explain last week that the failure of the “Ficha Limpia” anti-corruption bill was not the result of an agreement with Kirchnerism, that there were no negotiations under way even when they seemed to be taking place openly, and that they have ended up in a blind alley with time against them. 

But Kirchner even tossed them a life raft, by not taking advantage of the note delivered by José Mayans, signed by 33 senators, that rejected the naming of any judge by decree.

It wasn’t just signed by the 15 who answer to her directly. All Peronists signed it. It would have been the first gesture of unity since she became the president of the Justicialista Party, something she decided not to turn into a press op. 

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Another point that hasn’t gone unnoticed: the current debacle mirrors the way Mauricio Macri attempted to name judges during his presidency, in 2015 and 2016. Now, the so-called “Republicans” of PRO, vociferously opposed to such a maneuver now, are tying themselves into knots to justify a decree with arguments that ultimately revolve around who those judges are. 

Beyond Kirchnerist circles and in the Senate, the impression is spreading that there is a typical market problem: nobody is willing to pay the political price the Casa Rosada is offering, but they would “buy” if the offer changes. The question is whether that idea gathers force and starts to put pressure on the government.

The slimmest of chances

Asked whether the probability of 150 judges, prosecutors and public defenders being named by decree was 0.0, a senior source within the Executive branch told the Herald’s sister title, Ambito, that that figure was “0.1.” That slimmest of chances does not understand subtleties, and is heightening tensions in the business community. Approximately one in six judges could end up named that way, in what would be an unprecedented situation. Searching for previous instances during Raúl Alfonsín’s presidency only underscores how outlandish the idea is. The government argues that the situation is dynamic and the changes are happening minute by minute, so that the definitive list carries the weight of a series of messages to the Senate, as it always has. When they might be debated is anyone’s guess.

The mixed bag of decrees that some government spokespersons are threatening to present includes the Supreme Court, the Attorney-General’s Office, the General Public Defender, and even the Ombudsman, a position which has been empty since 2009. It would be typical of the government’s style to eliminate that role entirely. Respect for institutions is not something for which this administration will be remembered.

Milei has never meddled with the Judicial Branch. He has not attacked any of its figures directly, included them in the cast, or sent his hordes of trolls against judges. He has even given them tangible improvements, in terms of pay rises, that other public sectors can only dream of. That said, his attitude has been characterized by disdain. So far, that is a privilege, but there is nothing to stop that situation from changing if any unfortunate movements were to bring about a sudden change in conditions.

Legal security

Milei has not named a single judge, beyond extending a few of their mandates for five years. This is a matter of interest for the major legal studios. Not only have they put heart and soul into studying the reforms the government has been boasting of, but they have also looked closely at what might happen with their clients. Among the 150 open positions are key jurisdictions such as the Federal Civil and Commercial Courts, the Federal Administrative Litigation, and the Economic Criminal jurisdiction. 

In the end, it’s all about money: how do firms explain to their investor clients that Argentina has vacancies that have either not been filled after a year, or could end up being filled by judges named by decree, who would have to rule on lawsuits that are worth millions of dollars, or where legal security is being defined?

That seems to be the question nobody is asking. Business leaders who are used to being several moves ahead are looking at the chessboard with concern.