In a previous article we speculated on whether the General Council of the Judiciary in Spain would appoint 2 new judges to the Constitutional Court, in spite of the fact that the council’s term expired more than 3 years ago, or whether the 2 old judges on the court would continue to sit indefinitely even though their 9 year terms are up.
We then discovered the socialist government had passed an organic law to prevent the expired general council of the judiciary from making those 2 appointments (and other very important judicial appointments) and added an addendum accordingly.
This indeed meant the old 2 nominees (who are part of the conservative block on the court) are now serving in office longer.
But, the conservative president of the Constitutional Court Pedro González-Trevijano has used this as a justification to stay in office longer as well and now positioned the right-wing faction on the court firmly against the current Far Left minority government.
A judicial battle involving the judges themselves and not just the politicians.
Exploiting a loophole
Justice González-Trevijano was a government appointee and his term expired at the same time as the 2 judicial council appointees. He has made it clear that such vacancies must be filled simultaneously (even though he ruled differently regarding a law passed by the Right in 2016 that enabled the conservative majority senate to appoint new members to the general council of the judiciary while the lower house was split).
Since the sitting members of the Constitutional Court must approve new appointments and the conservatives would have a majority together with the conservative president (who indicated he would partake in such a decision) new government appointees would be prevented from taking their seats.
The government did not replace the president and has so far acted as if willing to reach a compromise. A confrontation with the president of the court and the constitutional crisis just before the Andalusian regional election was just too dangerous.
The government will wait to shift the balance of the court’s members and remove its conservative president. The plan is apparently to pass an organic law that allows the expired general council of the judiciary to nominate 2 new judges to the court after all, enabling the government to replace the government position at the same time.
This means they’d give up 2 seats on the court (for the next 9 years) to be able to replace the right-wing government appointee judge with a leftie while avoiding a constitutional crisis. Just as how they agreed on supporting 2 off the 4 nominees to the constitutional court by the lower house being hard right candidates a few months ago, just so 4 new judges could finally be appointed.
These admissions of defeat will result in new seats being filled in an equal 4-4 Hard Right Hard Left manner. Currently the senate appointees are split as well. If the deal is reached, the court will end up being split 6-6. For now it is still 8-4 for the conservatives. Stalling only works in their favor.
But one conservative judge’s term will end in March of next year. The right opposition in the senate just might demand an equally hardliner replacement to prevent the balance to shift further on the court or they might keep the old judge in his seat till the elections at the end of 2023.
Chances of escalation
But while the socialist government couldn’t afford a crisis just before the local election, whether a compromise will be reached in the months to follow is up in the air.
If they have to wait till later in the fall, several conservative members of the court will serve for multiple additional months. Passing the law without enabling the general council of the judicial to make all important judicial appointments again will be difficult considering conservative opposition in both houses which has demanded a full restoration of the general council of the judiciary’s right to make all crucial judicial appointments.
They might decide they’re crazy enough to cause a confrontation with the president of the constitutional court and all the conservative members, since several of them are past their retirement date.
But how would such a clash go?
If the President refuses to leave along with the other judges and they have the support of at least 5 other judges, (meaning majority) what will the government do then? Sent in the police to forcefully remove them? The police is already disproportionately in favor of Vox and forcefully removing the president of the Constitutional Court (when the majority of the sitting court supports him) is going to look really extremely truly bad. It would amount to an anti-constitutional self-coup. The parallels with the civil war when the popular front government forced the president of the supreme court to resign cannot be emphasized enough.
The right-wing elements in the police, the army and the secret service that have been fantasizing of a coup, would be granted the perfect pretext. They would be obligated to disobey the decision and prevent other police officers from carrying it out.
They would need to go against and possibly overthrow the government to protect the constitution. A countercoup which might be the basis for a full counterrevolution.
Even if the Constitutional Court conflict does not end up becoming the catalyst for a coup, the extremely partisan and polarized conflict affecting every segment of the state is the sign of a decaying democracy.
Since Vox openly flirts with neo-Francoism and enjoys strong support within the armed forces, history may yet repeat itself.
Though the question is, what would be different from the 1930s? Just how Reactionary is Spain?