The magistrates of the Constitutional Court -eleven after the surprise resignation of Professor of Labor Law Alfredo Montoya on July 27 – they are already on vacation. The next plenary session is not formally called for Tuesday, September 13, but it is derived, according to sources consulted, from the pre-existing calendar: five days after the holidays and the start of the judicial year on September 7. 13 would be the same day that the Government has promised to appoint two magistrates that corresponds to replace those whose mandate expired on June 12: Pedro Gonzalez-Trevijanopresident since November 2021, and Antonio Narvaez(substitute for Henry Lopezresigned after driving his motorcycle drunk in Madrid), appointed by Mariano Rajoy in 2013.
That plenary session of September 13, if called that day, it could be the barricades. Because González-Trevijano has sent to the Government that it has a majority to prevent the two new magistrates of the Executive from taking office if, in turn, the CGPJ does not name the two that it has to appoint.
The magistrates of the still current TC, then, are going to rest. Urgent matters to be discussed in Juneaccording to González-Trevijano’s promise, as the appeal of unconstitutionality against the abortion law, pending since 2010 (yes, 2010), have been left in the lurch; or the amparo appeal of the deputy Alberto Rodriguezexpelled from the Cortes by the president Meritxell Batet in October 2021 -after having contacts with the president of the Second Chamber of the Supreme Court, Manuel Marchena-, in which the former deputy demanded urgent precautionary measures, are waiting. No hurry. If the appeal against abortion has waited twelve years,Does something happen if Rodriguez’s waits for eight or nine months? The loss of credibility and usefulness of the TC has already been hard earned with its partisan annulments of the laws of the Government during the pandemic.
The “they will not pass” of the PP
But going on vacation does not mean abandoning plans whose broad outlines are designed. The approach of the Popular Party and the magistrates who cling to their chair is “they will not pass”, referring to the almost inevitable progressive majority in the Constitutional Court after the pending appointment of the four magistrates (along with the expiration of the mandates of González-Trevijano and Narváez are those of the progressive Juan Antonio Xiolcurrent vice president, and Santiago Martinez-Varesconservative, who must be replaced by whoever votes the CGPJ).
The majority is made up of the two appointed by the Government, and at least one of the two that the General Council of the Judiciary (CGPJ) should appoint to replace Xiol.
These three new members of the progressive sector, or one allied to it, added to the four members who remain (Cándido Conde-Pumpido, María Luis Balaguer, Ramón Sáez, and Inmaculada Montalbán) add up to seven, against the two new ones from the conservative sector, which will be added to the three that remain on the court (Ricardo Enriquez, Concepcion Espejel and another, assuming that the resigned Montoya will be replaced by a magistrate of his same conservative orientation), forming a group of five.
This is: 7 to 5.
This, then, is the landscape before the battle. Y this landscape is not accepted by the judicial and media right, and vice versa, that it is proposed to defend a maginot line that surrounds the TC. And in the worst case, opt for a lesser evil.
The first option is to insist on what González-Trevijano and Carlos Lesmes already have warned La Moncloa and the Minister of Justice, Pilar Llopin all the acts in which they have coincided in recent months: all four appointments must be simultaneous. If it’s just the two from the government, they won’t pass.
This approach that the media right airs to the four winds no legal basis. González Trevijano himself supported in 2016 -when his chair was not at stake like now- a ruling that authorized partial renewal when “normal circumstances” were not met, but the fact is that with the new legal reform of the Government, the CGPJ is in a position to appoint the two magistrates that correspond to it.
But he doesn’t want to. For this reason, the Government has said that, if those two appointments are not there on September 13, the Executive will comply and will appoint the two magistrates that it has after nine years (duration of the mandate) and three months of extension.
The right-wing media is now calling on González-Trevijano and Lesmes to prevent it. “Whoever wants to be a cattle herder / Must have cattle to be a herder & rdquor ;, he noted in the manuscript against Salazar in 1935 Portuguese poet and writer Fernando Pessoas reported Jose Barreto, editor of writings on fascism, the military dictatorship and Salazar. The Portuguese writer identified “cattle with an inert people”, but those lines are also useful for those who are now urging González-Trevijano and Lesmes to act, using, on the part of the latter, the disposition of the conservative members of the CGPJ who they rejected the suitability of the candidate for attorney general of the State (FGE), Alvaro Garciato now languish the election of the two magistrates for months.
Lesmes has your little heart
Lesmes, as reported, called a plenary session of the CGPJ for September 8 in order to adopt a position on the two magistrates to appoint now that it is possible.
And Lesmes also has his little heart: to become a magistrate of the Constitutional Court, as has happened with his predecessors. To do this, he has the ball for him is on the penalty line: Montoya’s spot.
The right-wing media uses to mobilize their own the argument that the Government will propose to appoint the magistrate of the Criminal Chamber of the National Court José Ricardo de Prada, already vetoed by Pablo Casado in 2018 Go retro!
Problem: the Government does not usually appoint judges but professors or professors because the judges are usually proposed by the CGPJ and are usually magistrates of the Supreme Court. Government sources confirm that this is their current position.
As for the right, it is quite normal that it promotes in the CGPJ the candidacy of a former president of the Professional Association of the Magistrature (APM). It’s happened with Ramón Rodríguez Arribas, Santiago Martínez-Vares… and it may happen again this time with another former president of APM, the magistrate of the Second Chamber Pablo Llarena.
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Precisely, Llarena would be the piece devised -although there are others like the one by Antonio del Moral– to “keep at bay” to Conde-Pumpido, from the Second Chamber.
If the progressive majority is inevitable, the right desperately seeks one last chance to defend the maginot line around the presidency. This goes through prevent Conde-Pumpido from being the next president. Seatbelts must be fastened.