Judicial standoffs escalate worldwide

30 so called old judges (pre-national council of the judiciary reform appointed judges) of Poland’s Supreme Court have written to the first President of the supreme court that they are unwilling to adjudicate with so called neo-judges. They don’t consider those judges as valid, rejecting the jurisprudence of the Constitutional Tribunal in favour of the political activism of the ECHR. Close to one third of the Supreme Court’s membership has signed the letter, but interestingly enough this only constituted about two thirds of the old judges who signed the letter. About one third didn’t.

The old judges tend to be, well, old. They reach the retirement age faster. Many off the old judges opposed to the reforms have recently retired. More are to follow. Meanwhile more neo-judges keep being appointed to work in the same chambers as the old judges.

The letter in a sense is a last-ditch effort. But if Law and Justice wins next year’s parliamentary elections (fairly or not). It is over. ‘Neo-judges’ will continue to be nominated as more old judges retire leaving at most a tiny handful on the Supreme Court with the neo-judges dominating each chamber and an overwhelming supermajority in the Supreme Court.

The EU and the CJEU haven’t gotten involved to directly in the dispute regarding whether the neo-judges are invalid, unlike the ECHR, nor have they demanded an end to new appointments or the implementation of ECHR rulings.

They do want the Polish government to change the law so the old judges can continue questioning the status of supposed neo-judges and ask politically loaded questions to the CJEU. The Polish government has refused this and so the EU has been increasingly blackmailing and punishing Poland influencing yet another national election.

Hopefully they’ll be able to restore the Polish economy through other means while continuing to help refugees. If they win next year’s elections, Polish old partisan judicial guard will finally be broken and the attacks on the Polish constitution will have failed.

Meanwhile in Spain the President of the Supreme Court and the General Council of the Judiciary has resigned because of the continued deadlocking regarding the renewal of the council and it is still unclear whether a political agreement can be reached between the government and the opposition to end the situation.

You see, the Right-wing opposition in Spain also discovered in 2018 that judges should elect judges as the Left has claimed should still be the case in Poland. So, they attacked the Socialist party’s reforms from the 1980’s which were ironically similar to PiS’ in Poland in that they allowed parliament to chose the judges who serve on the judicial council that nominates and promotes judges.

The Socialists need Right-wing cooperation for a 60 % majority to appointment new members but so far the Right has refused demanding a return to the old system.

If the Socialist Government does give in and agree to a return to the co-optation system, this heavily favours the Right, at least for the regular judiciary.

The Socialists wouldn’t get to nominate a more left-leaning council of the judiciary. Instead co-optation would be restored after a Right-wing council of the judiciary has been in place since 2013 and nominated judges for the higher courts till 2021 and in a country where the judiciary is unusually right-leaning for Western Europe.

But if these reforms are pushed through and the council is renewed, the Leftist government could nominate 2 judges alongside the 2 new judges appointed by the general council of the judiciary, giving the Left 7-5 majority for many years. The government has so far been prevented from replacing the 2 Right-wing judges nominated by the Right-wing government 9 years ago. The sitting Right-wing majority on Constitutional Court had determined that the government appointees could only be replaced together with the 2 judicial council appointees.

The government had passed a law in 2021 forbidding the general council of the judiciary from making any new judicial appointments, including to the constitutional court, as long as it isn’t renewed. The right-wing majority on the constitutional court cleverly used this against them, and so the government has managed to change this again so that now the judicial councils can make the 2 constitutional court appointments but no other high court appointments.

The Right-wing members of the council have so far obstructed the nomination of 2 new judges while the council remains toothless otherwise. Ironically the Right-wing president has been hoping to push through a compromise before he resigned. This didn’t happen. It has been speculated the council might still nominate 2 new judges without being renewed, but so far no agreement within the interim council has been reached yet.

If the Right-wing members of the council keep obstructing, this might finally force the Leftist government to give the regular judiciary away to the Right-wing establishment so the council can be renewed, the government can nominate its 2 judges alongside the 2 from the council and they will at least finally have a majority on the constitutional court.

But the Constitutional Court still has to deal with cases regarding abortion, euthanasia and the Leftist’s government’s recent extremist ‘democratic’ memory law.

So, it is in the Right’s favour to drag out the actual agreement as long as possible. To nit-pick any proposed reform.

Passing a law through both houses can take many months ordinarily and a radical reform of the judicial council could take even longer even without the many controversies and high stakes attached.

If they can obstruct a new law to institute co-optation from being past till the elections at the end of next year, they could appoint the 2 government appointed justices and keep a majority on the constitutional court.

A complex change regarding judicial appointments, specifically the most extensive reform in over 35 years, might be difficult to pass quickly for the Leftist minority government.

Regardless, let’s hope even Leftist judges oppose the government’s totalitarian attempts at censorship through the ‘Democratic’ Memory Law.

Oh, and let’s not start about the Supreme Court in the USA… except for that the Dems cannot be allowed to gain seats in the senate and long live the filibuster.

Ramon Giralt

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