AMLO Secures a New Judiciary for Mexico

“Coward!” “Traitor!” “Judas!” Such were the epithets hurled at Miguel Ángel Yunes Márquez, senator from the National Action Party (PAN), as he crossed the aisle to cast the determining vote in favor of the controversial judicial reform that promises to remake Mexican politics.

In a whirlwind of confusion, consternation, and accusations of corruption and foul play, that constitutional amendment passed its final hurdle last week, and Mexico’s President Andrés Manuel López Obrador can claim what is perhaps his greatest victory and what will almost certainly be his most important legacy. Beginning next year, Mexico’s current system of examinations and appointments for judges will end, and instead, all federal judges, including the judges of the Supreme Court of Mexico and the Federal Electoral Tribunal, will be chosen by popular election.

The passage of the amendment was in some doubt, as López Obrador’s coalition had only 85 of the 86 votes necessary to meet the supermajority required by the constitution. The opposition bloc whipped votes furiously, promising that there would be no defections. Things appeared to be at a standstill until Monday night, when two senators—including Yunes Márquez from the National Action Party—failed to show up to their party meetings, prompting speculation they would defect.

For Yunes Márquez, the speculations were true. The senator comes from a large but embattled political dynasty in the state of Veracruz, where he, his father, his wife, and his brother have all held offices as part of PAN—most of whom are now under investigation by either the government of Campeche or the office of the Mexican Prosecutor General (both under the control of López Obrador’s party Morena). A few of the pending investigations include a federal investigation into his brother, former mayor of the city of Veracruz, for allegedly forcing municipal workers to support Yunes Márquez’s candidacy; an investigation of his father, Miguel Ángel Yunes Linares, by the prosecutor general of Veracruz into corruption and misuse of public funds during his term as governor of the state, and an accusation this July of embezzlement against the senator himself and his wife, the current mayor of the city of Veracruz—an event which prompted his sudden departure to the United States on matters of his health, regrettably forcing him to miss an appearance in court.

That same issue apparently plagued him last week, as on the day of the vote he sent his father as his replacement to the Senate, who entered and sat down with the majority to cheers from Morena and allies and consternation among the opposition. Yunes Sr. excused his son, saying that he was gravely ill and in the hospital. And yet, that evening, as preparations for the vote were being made, Yunes Márquez himself arrived, little worse for wear. 

The furious opposition railed against Yunes Márquez’s betrayal. “It is obvious that there has been a bargain for immunity,” asserted PAN’s Senate leader, Marko Cortés, announcing his belief that the senator had defected in return for an end to judicial action against himself and members of his family (which, by all accounts, have prospered exceedingly during their time in politics). Other opposition members denounced him as a “traitor to the nation.” Yunes defended himself, saying, “it is no treason to act in accordance with my principles.”

So it was that the man who once accused the president of being insane, of being an epicurean pig who spends all day eating, and of spewing “barbarity,” ended up casting the final vote necessary to cement López Obrador’s greatest political triumph.

The consternation of the opposition was augmented by the absence of Senator Daniel Barreda of Citizen Movement, who disappeared overnight without warning. Opposition leadership initially reported that the Senator had been arrested, and so prevented from casting his vote. This accusation was fervently denied by the government, however, witnesses confirmed that his father’s house had been raided by the Morena-controlled state of Campeche. The next day, Barreda surfaced in Campeche and told news media that while he had not been arrested, his father and another allied local politician had been. When he was told the news the morning of the vote, he left the capital to secure his father’s release—which happened in the evening of that same day, a few hours after the vote took place, preventing him from being in attendance.

Last week’s vote essentially brings an end to what is perhaps the most divisive and transformative political contest of Mexico’s 21st century. The final hurdle for the proposal is ratification by a sufficient number of Mexican states, a trivial matter for López Obrador’s coalition, which controls the vast majority of state governments.

As a result, Mexico’s current system of examinations and appointments for judges will end. In two elections, one next year and one in 2027, the current Mexican judiciary will be swept clean of all currently appointed justices and magistrates, and new ones will be chosen by popular vote. This is a dramatic departure from the current system, in which (with the exception of justices on the Mexican Supreme Court) the selection of judges is almost completely isolated from the political process and is largely dependent on following a cursus honorum of appointments and examinations to, theoretically, ensure independence and competence in the Mexican judiciary.

Since 1994, control of the judicial system in Mexico has been centered in two bodies: the Supreme Court of Justice of Mexico and the Federal Judicial Council. The method of appointment to the Supreme Court is similar to that for judicial appointments in the United States: The president of Mexico nominates three candidates for an open position, and the Senate ratifies one of the proposed candidates for the position. All other federal judges and magistrates, however, are appointed neither by the executive nor the legislative branch, but by the Federal Judicial Council. This council is composed of the chief justice of the Supreme Court, three panelists appointed by the Supreme Court, two panelists appointed by the Senate, and one by the President. According to the constitution, these panelists may not act as representatives of those who appoint them, but are responsible to carry out their duties as independent authorities.

The system is not particularly popular among the Mexican people. Accusations of favoritism, nepotism in judicial selection, and corruption in the execution of justice are common. López Obrador sees it as a tool of the neoliberal power of capital; Ricardo Monreal, one of Morena’s leaders in the Mexican Chamber of Deputies, cried that “the people are fed up with the dictatorship of the cap and gown….The people are fed up with the corruption, the nepotism, the traffic of influence, and the conflict of interest in the judiciary!” Even the opposition parties broadly agree that the judicial system needs to be reformed.

Nevertheless, the decision to use popular election to determine the composition of the entire judiciary is a radical one, and unique among modern countries. Critics have pointed out a number of potential risks to such a system. A popularly-elected judiciary is likely to be significantly more partisan, and therefore compromises the essential independence of the judiciary and its capacity to restrain abuses of power by elected governments. It is also likely to be much more susceptible to political interference in the election of judges: Many worry that the system will enable cartels and other organized criminals to capture significant portions of the judiciary by controlling local judicial elections, further weakening the capacity of the Mexican government to respond to the organized crime endemic to the nation.

The Biden-Harris administration seems to share those concerns. The progress of the judicial reform has already occasioned a conflict with the United States, when López Obrador froze relations with the American embassy after Ambassador Ken Salazar labeled the amendment a “major risk to the functioning of Mexico’s democracy.” The Mexican president was outraged at the intervention into Mexico’s domestic affairs. “How are we going to allow the ambassador to give his opinion, to say what we’re doing is wrong?” he said.

For opposition parties especially, a major concern is that the reform would allow Morena—which currently has the support of a large majority of the population—to dominate the agencies that administer Mexican elections and cement its power permanently. This would essentially be a return to the days of the “dictadura perfecta” (perfect dictatorship), the long period during the 20th century when Mexican politics was absolutely captured by the Institutional Revolutionary Party (PRI). Indeed, the judicial reform is part of a package of reforms called “Plan C” proposed by López Obrador to reorganize the independent National Electoral Institute, which he argues is corrupt and dominated by political enemies. The package is titled “Plan C” because it is the third attempt by the president to accomplish this goal. The first, in April 2022, failed to pass Congress. The second, “Plan B,” was carefully shepherded through Congress in early 2023 by López Obrador, but was struck down by the Supreme Court that same year—a decision that many suppose was the impetus for this year’s judicial reform.

Morena, on the other hand, argues that the corruption of the current judicial system can be resolved by appeal to the wisdom and faith of the people. Supporters of the reform note that candidates must be qualified to stand for election: the amendment requires that candidates have been licensed to practice law, meet a certain score in legal examinations, have at least five years of experience practicing law, submit a selection of essays and provide letters of reference to vouch for their good character. Those who are elected will be evaluated by a judicial disciplinary tribunal after their first year in office to ensure their competence in the execution of their state functions.

The success or failure of López Obrador’s judicial reforms will have major effects on the United States. Mexico’s inability to control its cartels has been a major driver of crime, drug usage, and illegal immigration. Mexico is also one of America’s largest trade partners. Americans will have to hope that the president’s trust in Mexican democracy is not misplaced.

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