“The Popular Party will not be an accomplice in the occupation of Justice by the PSOE and the most radical nationalists.” The phrase was pronounced by Ángel Acebes in September 2007, but it could pass as current if Podemos were included in the equation. At that time, it was Mariano Rajoy who blocked the renewal of the General Council of the Judiciary (CGPJ) and fought to maintain a majority of like-minded members in that body that had nothing to do with the parliamentary reality that the polls had drawn in 2004. The PP it had lost a majority in Congress but was reluctant to do so in one of the key institutions of the state, which decides which judges rise to the highest positions in the judiciary. History repeats itself more than a decade later.
The president of the Judiciary justifies appointing judges despite being in office: “The opposite would violate the Constitution”
The mandate of this Council, elected in 2001 when José María Aznar ruled with an absolute majority, ended in November 2006 and was not renewed until September 2008. One year and ten months in office in which it continued to be one of the main platforms for opposition to socialist policies. During its ordinary mandate, the Council, despite being the body that guarantees the independence of the Judicial Power, did not skimp on political pronouncements and even drew up unsolicited opinions contrary to initiatives of the socialist government, such as the Statute or equal marriage. The Study Commission even approved a document in which same-sex weddings were compared with unions between men and animals.
The Organic Law of the Judicial Power establishes that the General Courts are in charge of appointing, by a majority of three fifths of its members, the twenty members of the governing body of the judges. The Council that Rajoy refused to renew was made up of a majority of ten conservative members to whom the president, Francisco José Hernando, had to be added. The Plenary was completed by seven members at the proposal of the PSOE, one from CiU, another from IU and another as a result of a consensus proposal between the PP and the PSOE that granted the place to the non-associated judge who obtained the most guarantees among his colleagues. This distribution had the backing of the Socialists in 2001.
Hernando, who died in 2013, was a controversial president. His public comments on current political issues were common, often coinciding with the postulates of the PP. In 2006 he refused to appear in the lower house to explain the change of criteria in the application of penalties by the Parot doctrine and also supported the proposal for a referendum against the Statute for which the PP collected thousands of signatures. On another occasion he was opposed to the fact that Catalan was a requirement to act as a judge in Catalonia and equated learning that language with those who go to Andalusia and learn Sevillanas.
29 acting appointments
How the current Council is doing —Which has been in office since November 2018 due to the PP’s refusal to renew it— the institution did not limit itself to the dispatch of ordinary affairs and continued to exercise its powers in matters of appointments, promotions, inspection and disciplinary regime. He renewed almost thirty high-level positions in the main courts. Among them, eleven in the Supreme Court, the highest body in all jurisdictional orders except in matters of guarantees and constitutional rights, and where appointments are for life. It also agreed to the renewal of eight positions in the autonomous superior courts and another ten in provincial courts.
During that period, the progressive Luciano Varela and the conservative Manuel Marchena entered the Second Chamber of the High Court, through which all corruption cases pass. Years later both were part of the court that judged the process. Marchena was the consensus name that the PP and PSOE agreed to in the last attempt to renew the current Council that blew up in November 2018 After leaking a message in which the then PP spokesman in the Senate, Ignacio Cosidó, assured that with his appointment the Second Chamber of the Supreme Court, the most important of all Spanish courts, would be controlled “from behind”.
This same Monday, the current president of the CGPJ and the Supreme Court, Carlos Lesmes, defended in his speech at the solemn act of opening the courts chaired by the king that the governing body of the judges keep making appointments to the judicial leadership despite being in office. “The opposite would be to breach the fundamental rule itself,” he said. Lesmes, who was a senior official in the governments of José María Aznar, reiterated his request to the parties to renew the institution to end the “serious anomaly” that this interim situation implies.
In that mandate, the institutional crisis lasted for a year and ten months because the formations that supported the Government of José Luis Rodríguez Zapatero in Congress did not reach the three-fifths necessary to elect new members. Furthermore, in the Senate the PP was the most represented force. The conservatives then asked to sit down and negotiate to maintain “the blocking minority” with nine of the twenty members to make the election of magistrates impossible without their agreement, since the law establishes that a majority of 13 votes of the twenty members is necessary, to those who join the president.
Finally, the agreement was reached in September 2008, after other general elections in which Zapatero revalidated his position in Moncloa. It was the first great state pact between the PP and the PSOE in five years, with the exception of several statutes of autonomy. In the end, nine members were left for each one and they gave another to CiU and another to the PNV. IU, who at that time had two seats in Congress, was left out. The two major parties secured a sufficient number of members to block far-reaching decisions, such as those relating to appointments or disciplinary matters.
The pact left a highly politicized body, of which, for example, the current Defense Minister, Margarita Robles; Judge Gema Gallego, who promoted a controversial investigation that served to amplify conspiracy theory that he was trying to link ETA with the 11-M attacks; or Conception Espejel, current president of the Criminal Chamber of the National Court, and who was removed from the Gürtel trials due to her proximity to the PP. The ideological division of the institution was not new. The outgoing Council, which was in office for 22 months, comprised two men who may be key in the renewal of the current leadership of the Judiciary: the Minister of Justice, Juan Carlos Campo; and the current secretary of Justice and Interior of the PP, Enrique López.