The United States has given a lot of good ideas to the world. We have also given a lot of bad ideas to the world. One of those good ideas is judicial review. One of those bad ideas is the Senate.
Argentina has both judicial review and a senate.
To be fair, she wanted indirect election: judges would still have been appointed but the body that selected them would be elected. Under Article 99 of the Argentine constitution, the President selects federal judges from a list presented by the “Council of the Magistracy.” According to the (not very good but) official English translation of the Argentine constitution, the Council is selected as follows:
The Council shall be periodically constituted so as to achieve the balance among the representation of the political bodies arising from popular election, of the judges of all instances, and of the lawyers with federal registration. It shall likewise be composed of such other scholars and scientists as indicated by law in number and form.
Meaning: Congress can write laws to choose the Magistracy Council however it likes, but it has to make sure that the resulting body represents all political parties, sitting judges, and the federal bar association.
Election for the Magistracy Council, held the Supreme Court, would not insure that all those groups would be represented. It would also, they held, violate the separation of powers and threaten judicial independence.
This has some resemblance to how New York State picks judges for the Court of Appeals. New York is not alone: you can find data on how U.S. states choose judges here; a summary can be found here. Of the 39 states with intermediate appellate courts, 21 do not hold elections. Of all 50 states, only 11 have no judicial elections; an additional seven have uncontested elections when judges are reappointed. The rest hold elections. Some even hold partisan elections.
It is pretty clear that the reason for the President’s desire to elect the Magistracy Council is that she is sick of court decisions going against her. The recent decisions against Chevron (which put the expansion of oil production in the Vaca Muerta at risk) doubtlessly play a part. She seems to be calculating that her political machine can win the resulting elections.
But are elected judges really a bad idea? Good political scientists have made the argument that judges make political decisions using unclear criteria anyway, and so we should elect them.
On balance, I think that the decision is a good one for Argentina. Argentina enjoys an independent judiciary. That is not only a recent accomplishment; it is something for which we can credit President Fernández’s husband, former president Néstor Kirchner. Elections would seem to weaken that accomplishment.
But the political scientists (arguing in the American context) make good arguments.
Should I change my mind?