Andrea Castagnola - Manipulating Courts in New Democracies: Forcing Judges Off the Bench in Argentina

When can the Executive manipulate the composition of a Court? What political factors explain judicial instability on the bench?

Using original field data from Argentinas National Supreme Court and all 24 Provincial Supreme Courts, Andrea Castagnola develops a novel theory to explain forced retirements of judges. She argues that in developing democracies the political benefits of manipulating the court outweigh the costs associated with doing so. The instability of the political context and its institutions causes politicians to focus primarily on short-term goals and to care mostly about winning elections. Consequently, judiciaries become a valuable tool for politicians to have under their control.

Contrary to the predictions of strategic retirement theory, Castagnola demonstrates that there are various institutional and non-institutional mechanisms for induced retirement which politicians have used against justices, regardless of the amount of support their party has in Congress. The theoretical innovations contained herein shed much needed light on the existing literature on judicial politics and democratization. Even though the political manipulation of courts is a worldwide phenomenon, previous studies have shown that Argentina is the theory-generating case for studying manipulation of high courts.

Andrea Castagnola is an assistant professor at the School of Politics and Government at Universidad Nacional de San Martin, Argentina. She was assistant professor at Flacso-Mexico and holds a Post-Doc from the University of Bergen, Norway. Her research focuses on judicial politics in Latin America and Comparative Politics. Her work has been published in journals such as British Journal of Political Science, Journal of Politics, Journal of Politics in Latin America and Poltica y Gobierno.

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Forcing Judges off the Bench in Argentina

Andrea Castagnola

First published 2018

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Library of Congress Cataloging in Publication Data

Names: Castagnola, Andrea, author.

Title: Manipulating courts in new democracies : forcing judges off the bench in Argentina / Andrea Castagnola.

Description: New York : Routledge, 2017. | Includes bibliographical references and index.

Identifiers: LCCN 2017027137 (print) | LCCN 2017027590 (ebook) | ISBN 9781315271774 (Master) | ISBN 9781351986083 (WebPDF) | ISBN 9781351986076 (ePub) | ISBN 9781351986069 (Mobipocket/Kindle) | ISBN 9781138280724 (hardback : alk. paper)

Subjects: LCSH: Political questions and judicial powerArgentina. | Courts of last resortArgentina. | JudgesArgentina. | Justice, Administration ofArgentina. | DemocracyArgentina.

Classification: LCC KHA2533 (ebook) | LCC KHA2533 .C37 2017 (print) | DDC 347.82/035dc23

LC record available at https://lccn.loc.gov/2017027137

ISBN: 978-1-138-28072-4 (hbk)

ISBN: 978-1-315-27177-4 (ebk)

Typeset in Times New Roman

by Wearset Ltd, Boldon, Tyne and Wear

During recent years, the front pages of the newspapers have recurrently denounced the lack of independence of the judiciaries by revealing corruption cases as well as political manipulation of the justices. In November 2004, President Lucio Gutierrez from Ecuador with support from the congress removed 27 justices (out of 31) from the Supreme Court and seven judges (out of nine) from the Constitutional Tribunal as the result of explicit accusations that the justices and judges were politically loyal to the former president. In April 2005, the judiciary was, once again, the target of political manipulation when Gutierrez purged both the Supreme Court and the Constitutional Tribunal as a way to mitigate the critics and the opposition to his government. The country remained for seven months without a Supreme Court and for ten months without a Constitutional Tribunal. In July 2007 the Ecuadorian President Rafael Correa carried out a controversial restructuring of the judiciary, in which the Supreme Court changed not only its name (to the National Court of Justice) but also the total number of justices (reduced from 31 to 21). That same year, the Constitutional Tribunal was once again purged, in this case as a result of political confrontations with the executive. In Argentina in 1990, President Carlos Menem increased the number of sitting justices of the Supreme Court from five to nine and appointed six new justices to the bench, since two of the sitting justices had stepped off because of excessive political manipulation. In 2003, the Argentine President Nstor Kirchner induced the departure of six justices: two of them were impeached, and the other four were forced to leave via threats of impeachment and moral coercion.