Following its landslide victory in Mexico’s presidential elections, the MORENA coalition is wasting no time in getting to work. Even before president-elect Claudia Sheinbaum takes office on October 1, the new Congress is taking up a package of constitutional amendments proposed by outgoing president Andrés Manuel López Obrador (AMLO), flexing the muscle of a two-thirds qualified majority that allows the president’s party to pass such measures virtually on its own. And the first one up is already drawing the ire of corporate media and foreign powers alike: a judicial reform requiring direct, democratic elections for the entire federal judiciary.
On August 22, US Ambassador to Mexico Ken Salazar released a statement opposing the reforms. It was, to say the least, a curious one. After mentioning Iraq and Afghanistan — two countries the United States has recently invaded and occupied — as examples of countries that lack independent judiciaries, he proceeded to aver that “popular direct election of judges is a major risk to the functioning of Mexico’s democracy.” Following the exposition came the threat: “I also think that the debate . . . will threaten the historic trade relationship we have built, which relies on investors’ confidence in Mexico’s legal framework.” If you know what’s good for you, in so many words, lay off.
AMLO, in fact, did not know what was “good for him.” “How are we going to allow the US ambassador, with all due respect . . . to opine that what we are doing is wrong?” he asked at his press conference the following Tuesday. While denying that the ambassador would be expelled, he explained that the relationship with the embassy was “on pause.” The same, he added, for the Canadian embassy, whose attitude in seconding the United States had been “pitiful . . . like a vassal state.” Both countries, he concluded, “would like to interfere in matters that only concern Mexicans. As long as I am here, I will not allow any violation of our sovereignty.” The battle lines had been drawn.
Ken’s U-Turn
The ambassador’s letter and accompanying press conference were all the more surprising in light of the fact that, two months prior, he had said the exact opposite. The judicial reform “is a Mexican decision,” he stated on June 13. “It is not our decision. We, the United States, cannot impose our opinions in those matters.” On July 24, he reaffirmed that “the model [of the reform] will be the decision of the Mexican government, of the Mexican legislature. I’m not going to get involved in what should be done.” Just days before his U-turn, he was still saying that the judicial reform represented “an opportunity to do good things,” and that the United States was “not in a position” to tell Mexico what to do.
Following his blunt club of a statement, Salazar continued to twist rhetorically in the wind. Faced with blowback not only from the president but from a public historically disinclined to look favorably on US interventionism, he first tried backing off, contending that his comments had been made in a “spirit of collaboration” as “partners,” and that he had “the greatest willingness” to dialogue on the issue. The faux détente, however, entirely missed the point that the judicial reform was not an issue for which “dialogue” with the United States was either requested or appropriate. Thus Salazar returned to the attack, doubling down on the Iraq and Afghanistan point in an interview for Milenio TV while asserting that the reform violated the “spirit of the USMCA agreement” — NAFTA’s replacement — knowing full well he could not say that it violated the actual agreement. By September 3, he had been reduced to arguing that well, yes, the United States also elects judges, but only at the state level (where most cases are tried) and only in a few states (actually forty-one, in whole or part), and that whether or not the press in attendance was “with him” or not, they were always welcome at the embassy.
Washington Calling
Such an abrupt volte-face in posture clearly was not hatched in Mexico City but in Washington. The question, of course, is by whom. In the absence of power emanating from the Joe Biden White House, other power centers within the federal government have been rushing to fill in the void, stepping over each other in the process.
As a consequence, Latin American policy in recent months has been all over the place. When Ecuador invaded the Mexican embassy in April in flagrant violation of international law, the tepid State Department response was subsequently “corrected” by National Security Advisor Jake Sullivan. In the case of the Venezuelan election in August, Antony Blinken rushed to congratulate right-wing candidate Edmundo González only for spokesperson Matthew Miller to walk it back a few days later. And now the Mexican ambassador — already the subject of a front-page New York Times hit piece in 2022 for supposedly getting “too close” to AMLO — has been forced to fall on his sword and contradict his own statements made within the course of a week.
One candidate is the Drug Enforcement Administration, which has been running an operation to smear AMLO through pliant media voices in response to his limiting of its powers on Mexican soil. Another is the Blinken hawks at the State Department or one of the other intelligence agencies. A more obvious source for the change in discourse, however, is the business community, which has long made use of friendly judges and abused legal proceedings such as amparo (a form of preliminary injunction) to further its own interests in strategic areas such as banking, mining, energy, and water and block legislation that would seek to regulate them. For all the lurid warnings of how a democratically elected judiciary would open the door to greater cartel influence, the genuine concern of multinationals is rather that it would close the door on monied interests, their bribes, and the historically cozy relationship they’ve enjoyed with justices that has virtually guaranteed decisions in their favor.
When AMLO fought to increase public control over Mexico’s energy sector in the face of a slew of amparos and lawfare, Salazar — a longtime advocate for big energy both in and out of government — was also trundled out to express his “serious concerns” and threaten that the United States’ differences on the matter “might not have a solution.” The law to rein in private energy was eventually thrown out by the Supreme Court in February in a contorted process that required the votes of just two of its eleven justices, on the grounds that it violated “free competition” and “sustainable development.” The ambassador-lobbyist had won. AMLO was determined that it would not happen again.
Judges Behaving Badly
The furor over the energy reform was just the tip of the iceberg. Even before turning into a machine for striking down laws (seventy-four so far during this administration) on the barest of pretexts, Mexico’s judiciary had already become infamous as a cocktail club characterized by excessive salaries, perks, ethics scandals, and nepotism at the service of the oligarchy and other unsavory interests. This has taken multiple forms, such as forgiving tax debts, as in the case of the 640 million peso (US$32 million) “adjustment” granted to Totalplay, the telecom company owned by Mexico’s third-richest person and notorious tax evader Ricardo Salinas Pliego. It has also taken the form of get-out-of-jail-free cards for wealthy suspects to walk away scot-free or, at worst, be sent home to face trials from comfortable house arrest; a macabre sport in Mexico has been waiting to see which new well-heeled individual will be sent through the revolving door, usually on Saturdays (hence the term sabadazo), when there is less media coverage and when government offices are closed.
Among the long list of high-profile beneficiaries are names such as Emilio Lozoya, accused of triangulating money from the Brazilian company Odebrecht to the 2012 campaign of Enrique Peña Nieto; Rosario Robles, accused of funneling millions in social development funds through universities in the Peña administration in what was known as the “Master Scam”; Francisco García Cabeza de Vaca, the former governor of Tamaulipas who had been stripped of his immunity to face money laundering and organized crime charges, only for the Supreme Court to step in and quash the procedure, allowing him to flee to Texas; and most recently, Mario Marín, the former governor of Puebla, accused of ordering the torture of journalist Lydia Cacho for revealing the story of his presumed participation in a child pornography and trafficking ring. The treatment of such notables is particularly galling in a context where thousands of Mexicans without adequate connections and bank balances languish for years on end in prison before their cases ever come to trial.
Making matters worse has been the erratic and underhanded behavior of the gowned class in recent months. In May, it was revealed that Norma Piña, the chief justice of the Supreme Court, had held a private meeting with magistrates from the Federal Electoral Tribunal together with Alejandro Moreno, the president of the opposition Institutional Revolutionary Party.
The meeting was doubly troubling: first, for involving a leader of the political opposition, and second, for including several of the very magistrates who would be deciding the validity of the upcoming 2024 presidential election. According to WhatsApp conversations leaked from the gathering, Piña explicitly introduced Moreno to the other guests as her “ally” and “friend.” Instead of resigning, which the seriousness of the conflict of interest easily warranted, Piña has led the charge against the judicial reform, in recent days even leading the Court to join a judicial-branch work stoppage in protest.
As if that were not enough, a pair of federal judges attempted to wield the amparo injunction against Congress itself, ordering it to freeze its consideration of the reform and, in the event it were approved, to refrain from sending it to the state legislatures for ratification — a ludicrous and patently illegal judicial overreach, in short, that only reinforced MORENA’s argument of the need for root-and-branch reform. In the midst of all this broke a scandal of Lourdes Mendoza, columnist for El Financiero newspaper, sending her column on the reform to Supreme Court justice Margarita Rios-Farjat for her “green light” — a timely reminder of the chummy relationship between the courts and the corporate press, all in the pursuit of common interests.
The Fear of a Good Example
As a first step toward cleaning up the courts, the judicial reform provides for direct elections for half of the federal judiciary in 2025, including the entire Supreme Court, and the other half in 2027. All current justices will be eligible to run. Elections will be nonpartisan, with a prohibition on the use of private financing; instead, candidates will be given free television and radio airtime to make their case. Technical committees will be set up in both houses of Congress to ensure that potential candidates meet basic requirements of education and experience. The terms of Supreme Court justices will be reduced from fifteen to twelve years. Gender parity will be enforced, together with a limit on excessive trial lengths. Excessive salaries, perks, and pensions will be eliminated. The use of the amparo to block anything and everything will be reined in. And, crucially, an independent oversight board will be established with powers to sanction, suspend, or even remove corrupt judges from the bench.
And while the judicial reform has become a lightning rod, it must be understood in the context of the other constitutional amendments the Mexican congress will be considering in the upcoming months, including greater autonomy for indigenous and afro-Mexican peoples; greater wage, housing, and pension protections; and a ban on fracking, open-pit mining, and GMO corn for human consumption. No wonder the multinational business community and their spokespeople in the embassies are worried, not only due to the limits the reforms will place on their ability to act with judicial-backed impunity but also for the fear that such a precedent could spread to places like the United States, which is just beginning to undertake its own, far more modest attempt to reform an unchecked and overweening Supreme Court. “The fear of a good example,” as journalist and activist Eugene Puryear puts it, indeed.
Kurt Hackbarth is a writer, playwright, freelance journalist, and the cofounder of the independent media project “MexElects.” He is currently coauthoring a book on the 2018 Mexican election.
