AMLO secures new judiciary for Mexico

“Coward!” “Traitor!” “Judas!” These were the insults hurled at National Action Party (PAN) senator Miguel Ángel Yunes Márquez as he crossed the aisle to cast his decisive vote in favor of the controversial judicial reform that aims to reshape Mexican politics.

Amid a whirlwind of confusion, consternation and accusations of corruption and foul play, that constitutional amendment passed the final hurdle last week, and Mexican President Andrés Manuel López Obrador can claim what is perhaps his greatest victory and almost certainly his greatest legacy. Starting next year, Mexico’s current system of judicial examinations and appointments will end, and instead all federal judges, including those of the Supreme Court of Mexico and the Federal Electoral Court, will be elected by popular vote.

The amendment’s passage was somewhat in doubt, as López Obrador’s coalition had only 85 of the 86 votes needed to secure the supermajority required by the constitution. The opposition bloc angrily won the vote, promising that there would be no defections. Things seemed to be at a standstill until Monday night, when two senators, including Yunes Márquez of the National Action Party, failed to show up for their party meetings, leading to speculation that they would defect.

For Yunes Márquez, the speculation was true. The senator comes from a large but beleaguered political dynasty in the state of Veracruz, where he, his father, his wife and his brother all held positions as part of PAN—most of them now under investigation by either the Campeche government or the Mexican attorney general’s office (both controlled by López Obrador’s Morena party). Some of the ongoing investigations include a federal probe of his brother, a former mayor of Veracruz City, for allegedly coercing city officials into supporting Yunes Márquez’s candidacy; an investigation into his father, Miguel Ángel Yunes Linares, by the Attorney General of Veracruz for corruption and misuse of public funds during his term as governor of the state, and an accusation of embezzlement in July against the senator himself and his wife, the current mayor of the city of Veracruz – an event that prompted him to leave suddenly for the United States for health reasons, which unfortunately caused him to miss a court hearing.

The same issue had apparently plagued him last week, because on the day of the vote he sent his father as his replacement to the Senate, which entered and sat down with the majority, to the cheers of Morena and allies and the dismay of the opposition. Yunes Sr. apologized to his son, saying that he was seriously ill and in the hospital. And yet Yunes Márquez himself arrived that evening, as preparations for the vote were being made, hardly worse.

The angry opposition fiercely opposed Yunes Márquez’s betrayal. “It is clear that a deal has been made for immunity,” claimed PAN Senate leader Marko Cortés, who announced that he believed the senator had defected in exchange for an end to the legal proceedings against him and his family members (who, by all accounts, had prospered extraordinarily during their time in politics). Other opposition figures criticized him as a “traitor to the nation.” Yunes defended himself by saying, “it is not treason to act in accordance with my principles.”

And so it was that the man the president once accused of insanity, of being a bon vivant who eats all day long and of spewing “barbarity” ended up casting the final vote needed to seal López Obrador’s greatest political triumph.

The opposition’s consternation was further compounded by the absence of Senator Daniel Barreda of the Citizen Movement, who disappeared overnight without warning. The opposition leadership initially reported that the senator had been arrested and was therefore unable to vote. This accusation was vehemently denied by the government, but witnesses confirmed that his father’s house had been raided by the Morena-controlled state of Campeche. The next day, Barreda turned up in Campeche and told the news media that he had not been arrested, but his father and another local politician. When he heard the news on the morning of the vote, he left the capital to secure his father’s release, which happened in the evening of the same day, a few hours after the vote had taken place, preventing him from being present.

Last week’s vote effectively ends what is perhaps the most divisive and transformative political battle 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 judicial examinations and appointments will end. In two elections, one next year and one in 2027, the current Mexican judiciary will be purged of all currently appointed judges and magistrates, and new ones will be elected by popular vote. This is a dramatic departure from the current system, in which (with the exception of judges in the Mexican Supreme Court) the selection of judges is almost completely isolated from the political process and largely depends on following a cursus honorum of appointments and examinations to theoretically guarantee the independence and competence of the Mexican judiciary.

Since 1994, control over the judicial system in Mexico has been centered in two bodies: the Supreme Court of Mexico and the Federal Judicial Council. The method of appointment for the Supreme Court is similar to that for judicial appointments in the United States: the President of Mexico nominates three candidates for a vacant position and the Senate confirms one of the proposed candidates for the position. However, all other federal judges and magistrates are appointed neither by the executive nor by the legislature, but by the Federal Judicial Council. This council is composed of the Chief Justice of the Supreme Court, three panel members appointed by the Supreme Court, two panel members appointed by the Senate, and one by the President. According to the Constitution, these panel members may not act as representatives of those who appoint them, but are responsible for carrying out their duties as independent authorities.

The system is not particularly popular among the Mexican population. Accusations of favoritism, nepotism in the selection of judges and corruption in the administration of justice are common. López Obrador sees it as an instrument of the neoliberal power of capital; Ricardo Monreal, one of Morena’s leaders in the Mexican Chamber of Deputies, exclaimed that “the people have had enough of the dictatorship of the robe and the beret… The people have had enough of corruption, nepotism, influence peddling and conflicts of interest in the judiciary!” Even the opposition parties largely agree that the justice system needs to be reformed.

Nevertheless, the decision to use popular elections to determine the composition of the entire judiciary is radical and unique among modern countries. Critics have pointed to a number of potential risks to such a system. A popularly elected judiciary is likely to be significantly more partisan and therefore jeopardizes the essential independence of the judiciary and its ability to curb 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 allow cartels and other organized criminals to capture significant portions of the judiciary by controlling local judicial elections, further weakening the Mexican government’s capacity to respond to the organized crime endemic to the country.

The Biden-Harris administration appears to share those concerns. Progress on justice reform has already led to a conflict with the United States, when López Obrador froze ties with the U.S. embassy after Ambassador Ken Salazar called the amendment a “great risk to the functioning of Mexican democracy.” The Mexican president was furious about the interference in Mexico’s internal affairs. “How are we going to let the ambassador give his opinion, to say that what we are doing is wrong?” he said.

A major concern, especially for opposition parties, is that the reform would allow Morena, who currently has the support of a large majority of the population, to dominate the institutions that manage Mexican elections and permanently consolidate his power. This would essentially be a return to the days of the “dictadura perfecta” (perfect dictatorship), the long period in the 20th century in which Mexican politics was completely 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 claims is corrupt and dominated by political enemies. The package is called “Plan C” because it is the president’s third attempt to achieve this goal. The first, in April 2022, failed to pass Congress. The second, “Plan B,” was carefully shepherded through Congress by López Obrador in early 2023 but was rejected by the Supreme Court that same year — a decision many believe sparked this year’s judicial overhaul.

Morena, on the other hand, argues that the corruption of the current judicial system can be solved by appealing to the wisdom and faith of the people. Advocates of the reform note that candidates must be qualified to run: the amendment requires that candidates have a license to practice law, achieve a certain score on legal examinations, have at least five years of experience in the legal profession, submit a selection of essays, and provide letters of recommendation attesting to their good character. Those elected will be reviewed by a judicial disciplinary board after their first year in office to ensure their competence in the performance of their state functions.

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