President Mauricio Macri filled up two Supreme Court vacancies by decree. The new judges, who will replace Carlos Fayt and Eugenio Zaffaroni, are Carlos Fernando Rosenkrantz and Horacio Daniel Rosatti.
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Judges Rosenkrantz (l) and Rosatti (r)
The procedure for appointing Supreme Court judges demands that the executive publishes the names of the candidates, then giving 15 days for organisations, academics, and other members of civil society to support or challenge them. After this period, the president may submit the candidacies to the Senate, which must approve them before they can take office.
However, as Congress is currently in recess and President Macri did not call for extraordinary sessions, he appealed to a constitutional clause which states that the President “may fill up employment vacancies, which require an agreement by the Senate, and which may come up during its recess, through appointments in commission which will expire at the end of the following legislature.” If the Senate does not reject or agree to the appointments next year, the new judges will remain in their posts until 30th November 2016. The decree which appoints the judges also calls for the Justice Ministry to “immediately implement the procedure” by which they will be eventually ratified or rejected by the Senate.
Carlos Rosenkrantz is a lawyer from UBA and holds a LLM and JSD from Yale University. He has served as professor in various universities in Argentina and overseas and is currently the dean of the Universidad de San Andrés. He specialises in constitutional litigation and complex cases. He is a partner in the firm Bouzat, Rosenkrantz & Asociados, which represented Grupo Clarín in the media law case.
Horacio Rosatti is a lawyer and notary public from the Universidad del Litoral. He also has an extensive academic career and was mayor of the city of Santa Fe between 1995 and 1999, and Justice Minister under Néstor Kirchner’s government between 2004 and 2005.
Justice Minister Germán Garavano justified the appointment, saying that the Constitution “is very clear” in stating that this procedure may be used when Congress is in recess, and adding that “they are two completely independent judges (…), despite being ‘in commission’ they will not do whatever the Government asks.”
However, the government was widely criticised for exercising a mechanism that has never been implemented in democratic times to appoint Supreme Court judges. Radical politician and former judge, Ricardo Gil Lavedra, said that “the constitutional norm that was used is indefensible before the reach of the principle of judicial independence.” Though he recognised being friends with one of the new judges, he added that they “are not independent” because they will be “Macri’s judges, they depend on him for their appointment as well as for their removal.”
Legislator and former presidential candidate Margarita Stolbizer called the appointment “a scandal, a huge setback.”
Former Supreme Court judges Fayt and Zaffaroni resigned on 10th December 2015 and 31st December 2014 respectively. The previous administration proposed replacements for both judges, but the then-opposition made a pact refusing to approve any candidate presented by ex-President Cristina Fernández.
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