By ANDRÉS DEL RIO*

The Argentine president has demonstrated perseverance in his drive to co-opt and control the judiciary

Javier Milei became famous for his image of the chainsaw. Initially, it was supposed to be used to cut down the Argentine state, his main enemy in the president's own words. But in reality, he is using the chainsaw against democracy and its institutions. On February 25, the official gazette appointed Ariel Lijo and Manuel García-Mansilla as the new ministers of the court. In this text, we detail the appointment process, the two chosen, and the dilemmas for Argentine democracy.

Circumventing the law

In Argentina, Supreme Court judges are chosen through an indirect mechanism, where the Executive Branch presents the candidates (one of the powers attributed to the president, as provided for in article 99, paragraph 4, of the National Constitution), and the Senate of the Republic grants their approval with a special quorum of two-thirds of its members.

However, before the Senate reviews the nominations, a process of challenges and public observations of the nominations takes place, as established in Decree 222/03, enacted by Néstor Kirchner of the Frente para la Vitoria party in 2003. The decree incorporated transparency and citizen participation into the process. After this period has expired, the Executive Branch has a period of 15 working days to evaluate the nominations and decide whether to forward the nomination proposal to the Senate.

According to the law, the Supreme Court is composed of five judges. However, the Court currently has three members: Horácio Rosatti as president, Carlos Rosenkrantz as vice president, and judge Ricardo Lorenzetti. Judge Juan Carlos Maqueda reached the age limit (75) and retired in December 2024, opening the fourth vacancy. Since October 2021, the fifth vacancy has remained vacant due to the resignation of Elena Highton de Nolasco.

Decree 222/03 established the criteria for judges: “moral aptitude, technical and legal suitability, experience and dedication to the protection of human rights and democratic values”. In its article 3, it is established that the composition of the Supreme Court must take into account the inclusion of new members, with the aim of reflecting the diversity of gender, specialization and regional origin, in harmony with the principle of representation of a federal nation.

Javier Milei's decision was to appoint ministers by way of exception, through decree 137/2025, stripping the nominees of their legitimacy, undermining the independence of the High Court and compromising the separation of powers. A shot in the foot. The names nominated have the particularity of being temporary appointments. They were made during the recess of Congress, which returned on March 1, under the argument that the Senate was taking too long because it was not analyzing the nominations made by Javier Milei in May 2024.

This dynamic, known as committee nomination, is only valid until the end of the next legislature during the congressional recess. These are precarious and fragile appointments, with no vitality to the position. However, it is a way to temporarily circumvent the legislative barrier. According to the Minister of Justice, Cúneo Libarona, Javier Milei gave the Federal Senate enough time to approve the candidates.

But in reality, Javier Milei, without enough support or votes, had no option but to approve the nominations without negotiating with the opposition and its allies. The opposition party, Unión por la Pátria, has 34 of the 72 senators, which means it can obstruct any appointment. In the decree, Milei signals the need to normalize the functioning of the Court due to the lack of ministers. But far from normalizing, he is taking away credibility from a court that already does not have much respect in society.

On the one hand, there are institutional mechanisms that ensure its correct functioning until its composition is complete. In a recent “agreement”, the court itself developed a model to operate with auxiliary judges, given the lack of ministers in the court.[I]. On the other hand, in an opinion poll conducted in January 2025, on the perception of the judiciary and the administration of justice, the result was shocking: more than 90% of those interviewed expressed a negative view of the Judiciary.[ii] Ultimately, it is not about delay, but about creating consensus and majorities, which are basic to democracy and respect for the separation of powers. He did not get the necessary votes to approve his nomination, he applied an irregular decree, undermining the legitimacy of a court that was already socially demoralized.

In a statement, more than 30 organizations indicated that the appointment of two male judges, in commission, via decree: “… constitutes an improper advance by the president over the Legislative Branch, a significant violation of judicial independence and a clear offense to the commitment to ensure gender equality in the highest court, which seriously compromises its legitimacy and institutional quality”.[iii] It is worth noting that only three women, out of 104 men, have managed to become Supreme Court justices throughout their careers. It is worth noting that Argentina became the only country in Latin America not to have women on its Supreme Court, according to data from the ECLAC/UN Gender Equality Observatory.[iv]

According to the prestigious former minister of the court, Eugenio Zaffaroni, the appointments are unconstitutional, generating major legal problems. If the ministers in question sign sentences, they will be null and void and would be classified as usurpation of functions.[v]. The recently retired Supreme Court Justice, Juan Carlos Maqueda, stated about the appointments by decree: “It is on the verge of unconstitutionality”, and added “I consider the decision of the decree and the stance of the Executive Branch and the President absolutely regrettable, especially three days before the start of the regular sessions.”[vi].

Juan Carlos Maqueda points out that the historical context that made it possible to appoint judges by presidential decree in 1860 is completely different from the current one: “At that time, there was a Congress that operated from May 1 to September 30, and it was a nation without roads or railways, so an instrument of this nature was undoubtedly necessary.” Javier Milei issued the decree three days before the legislative session resumed.

Ironically, the position of the new minister García-Mansilla, who last year expressed his dissatisfaction with the appointments by decree, is striking. According to him: “Although the Constitution provides for such a situation, considering the impact it has caused, I would not have accepted the appointment.” But in addition to those who criticize, even those who support it prefer silence to the shame of publicly expressing support for a murky presidential move, and specifically, with a controversial appointment like that of Ariel Lijo.

Others warn that appointing judges in this way gives Javier Milei the chance to wait for the results of the 2025 legislative elections. And, if he reaches a larger base, the chosen names would be submitted to the Senate. In any case, the one who was forgotten in the process was democracy itself. The basic rule is that the president appoints, and the Senate approves. Let us remember that the court's ministers do not have the legitimacy of the popular vote, so it is the way they arrive at the court that stamps their legitimacy.

In short, it is like playing a football match and the judge being your best friend. It breaks the meaning of justice and democratic representation. In December 2024, the president of the Supreme Court, Horácio Rosatti, stated that, in the face of the possibility of appointments by decree, it is ultimately up to the Court itself to assess their constitutionality.[vii]. Currently, there are already two presentations in court against the decree[viii].

The old acquaintance

Ariel Lijo, a career judge, is currently a federal judge in the city of Buenos Aires. Comodoro Py, where he works, is the place where the biggest corruption cases and cases involving the powerful are tried. And there, he is one of the caudillos. Ariel Lijo is one of the founders and general secretary of the Association of Federal Judges (AJUFE). His political godfather is Ricardo Lorenzetti, a minister of the supreme court. His name was suggested to Javier Milei by Santiago Caputo, right-hand man and advisor to the Argentine president.

The appointment of Judge Ariel Lijo fills the vacancy left on the Court by Dr. Elena Highton de Nolasco, after her departure on November 1, 2021. In August 2024, Judge Ariel Lijo defended his candidacy to join the National Supreme Court of Justice in the Senate's Acuerdos Committee. The Public Hearing took place in the Blue Hall of Congress. His candidacy accumulated, over the weeks leading up to this moment, 3.578 supports and 328 objections, according to a report by the Minister of Justice of the Nation, Mariano Cúneo Libarona.

Ariel Lijo answered questions about his candidacy for eight hours in the Senate[ix]. It was one of the most contested and contested nominations in the history of the Court. Javier Milei’s vice president, Victoria Villarruel, made a statement about him before Lijo’s hearing, stating that “He is a judge who does not have the appropriate credentials to occupy the position of judge of the Supreme Court of the Nation. He is one of the guarantees of legal certainty. His appointment was not the most appropriate.”[X].

According to the Civil Association for Equality and Justice (ACIJ), Ariel Lijo has a total of 34 disciplinary complaints filed with the Judiciary Council since 2004, placing him as the second magistrate in Comodoro Py with the highest number of questions, although none of them resulted in a conviction. To give you an idea, Ariel Lijo has an average of 1,6 disciplinary complaints per year since he began serving as a magistrate.[xi]. He was also charged with illicit association, money laundering, bribery and influence peddling, without conviction.

In one of the complaints, Ariel Lijo had as his lawyer the media-savvy Mariano Cúneo Libarona, current Minister of Justice in the government of Javier Milei. With so many merits and virtues, the question would be why Ariel Lijo remained for so many years as a federal judge. Part of the answer is that he knows how to deal with the jungle of self-interested parties as well as survive the politics that surround the courts.

The federal judge has also been criticized for his low rate of referrals to trial in corruption cases, in addition to keeping cases pending for long periods of time. In this sense, Ariel Lijo has handled 89 high-profile corruption cases, but he considered that only 14 could continue to be tried. These are cases involving big names, such as the Amia case, the Correio Argentino case (with Macri as the accused and stalled for years), and the Siemens case (with more than two decades without any major progress). Cases involving several politicians and important figures in the political scene. Some indicate that he has some cases open as political protection against possible attacks against him.

On the other hand, Alfredo, known as Freddy, Ariel Lijo's brother, is considered a judicial operator (lobbyist in the justice system to influence cases), also accused of corruption. The Lijo brothers earned the nickname "the luxury brothers"[xii].

There were many and varied demonstrations against the nominations, but two are symptomatic. On the one hand, ironically, the criticism comes from the country where Javier Milei is based. In this sense, the United States Chamber of Commerce (AmCham) in Argentina, expressed its “concern regarding the appointment of the new members of the Supreme Court” and its impact on the economy.[xiii]. On the other hand, due to its significance, the Bar Association of the City of Buenos Aires expressed its opposition to the appointment, through a statement in which it states that “Dr. Lijo (…) has been repeatedly questioned for his inappropriate conduct…”[xiv]. The college is similar to the OAB.

Jurists, politicians and public figures, even allies of Javier Milei himself, were against the appointments. Including PRO, Mauricio Macri's party, and the Civic Coalition, with one of the most vocal critics being Elisa Carrió. Constitutionalist Daniel Sabsay stated that everything is irregular and that it generates institutional instability.[xv]. Constitutionalist Andrés Gil Dominguez took a similar position, indicating that the decree is absolutely null and void.

Ariel Lijo's situation is complicated and his formalization is still pending. Since the appointment is temporary, Ariel Lijo does not want to lose his federal position and has requested leave from his post. However, Ariel Lijo's request was denied by the Supreme Court (with the vote of the new Justice García-Mansilla), indicating that he must resign from his position to take up his position as a judge of the Court. Some indicate that Ariel Lijo will not resign and will wait for his nomination to be approved by the Senate.

The unknown

García-Mansilla replaced Judge Juan Carlos Maqueda, who in December 2024 reached the maximum age (75) stipulated by the Constitution for exercising the judiciary. In March 2024, upon accepting the proposal to join the highest judicial court, President Javier Milei nominated him as a candidate. It is noteworthy that since the beginning of the process in the legislature, the then candidate has not even managed to obtain the nine signatures necessary for the issuance of the opinion of the Senate's Committee on Agreements. The step prior to the vote in the Senate plenary.

Overriding the Senate's position, on February 25, 2025, Javier Milei appointed him in a commission, through decree No. 137/2025. The Supreme Court, considering that the candidate García-Mansilla possessed the qualifications required by the Federal Constitution, swore him in at a closed-door ceremony on February 27, in the Bermejo Hall of the Palace of Justice.

García-Mansilla has a career linked to the academic world. He holds a doctorate in law, is dean of the Faculty of Law at the Universidad Austral and is a professor of constitutional law. He is a member of several national and international law associations. He is considered to have very conservative ideas in the area of ​​customs and liberal in the economic area, in line with the current government.[xvi].

As an example, we highlight its restrictive stance regarding the validity, hierarchy and operation of human rights treaties, its position regarding reproductive rights and, especially, its militancy against the law on voluntary termination of pregnancy, in all its versions.[xvii].

Antecedent

Mauricio Macri, former president, was the last leader who attempted to appoint judges by decree in a committee, just days before starting his term in 2015. However, Mauricio Macri had to backtrack on the controversial decision, due to the strong response in the streets and in the legislature and the demands in the judiciary. Finally, Mauricio Macri reintroduced the appointments in the Senate, obtaining the approval of the judges (Horácio Rosatti and Carlos Rosenkrantz), respecting democratic rites.

Horizon

With global concern about democratic erosion and the increasing number of countries transitioning to autocracy, Javier Milei’s actions have raised red flags. One of the main movements in this type of transition, certifying democratic erosion towards autocratic regimes, is the co-optation and control of the judiciary, especially the supreme courts. Javier Milei, despite the lack of legislative support, has shown perseverance in his orientation towards this objective. At the end of 2025, there will be legislative elections in Argentina, increasing the possibility of radicalization. Building alliances between actors, democratic institutions and society is essential to block the authoritarian impulses of the president, in defense of democracy.[xviii]

*Andres del Rio is a professor of political science at the Fluminense Federal University (UFF).

Notes

[I] https://www.pagina12.com.ar/791470-la-corte-no-quiere-que-el-gobierno-designe-jueces-por-decret

[ii] https://www.clarin.com/sociedad/justicia-salio-preguntar-evaluan-ciudadanos-resultado-demoledor_0_dcamiimiUP.html?srsltid=AfmBOorsDNwjUIBuBoOujDhYFnIFBvHb9N4qdql0u8Ro2n8dabcJKwTl

[iii] https://inecip.org/prensa/comunicados/grave-retroceso-para-la-independencia-judicial-y-la-calidad-institucional-en-la-corte-suprema/

[iv] https://oig.cepal.org/es/indicadores/poder-judicial-porcentaje-mujeres-ministras-maximo-tribunal-justicia-o-corte-suprema

[v] https://www.pagina12.com.ar/806801-reparecio-zaffaroni-y-condeno-la-designacion-de-jueces-de-la

[vi] https://www.lavoz.com.ar/politica/garcia-mansilla-ya-es-el-cuarto-integrante-de-la-corte-suprema/

[vii] https://www.pagina12.com.ar/792648-rosatti-sobre-los-jueces-por-decreto-en-ultima-instancia-res

[viii] https://www.pagina12.com.ar/807027-los-tribunales-deciden-si-frenan-la-asuncion-en-comision-de-

[ix] https://www.infobae.com/politica/2024/08/21/el-juez-ariel-lijo-en-el-senado-en-vivo-las-ultimas-noticias-sobre-el-proceso-de-seleccion-para-integrar-la-corte-suprema-minuto-a-minuto/

[X] https://www.lavoz.com.ar/politica/villarruel-cargo-contra-lijo-a-horas-de-la-audiencia-en-el-senado-y-convoco-a-tratar-el-tema-de-las-dietas/

[xi] https://chequeado.com/el-explicador/quien-es-ariel-lijo-uno-de-los-dos-candidatos-propuestos-por-javier-milei-para-integrar-la-corte-suprema/

[xii] https://noticias.perfil.com/noticias/politica/por-que-ariel-lijo-es-un-candidato-polemico-para-la-corte-suprema.phtml

[xiii] https://www.lanacion.com.ar/economia/las-empresas-de-eeuu-alertan-sobre-el-impacto-en-la-economia-de-la-designacion-por-decreto-en-la-nid26022025/

[xiv] https://www.colabogados.org.ar/posicion/declaracion.php?id=347

[xv] https://www.youtube.com/watch?v=AzwlWHYEs6U

[xvi] https://www.pagina12.com.ar/807362-un-conservador-antiderechos-en-la-corte

[xvii] https://www.youtube.com/watch?v=9B2z5GG15qc

[xviii] I appreciate Dr. Andrea O. Ribeiro's careful reading

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