Before 2008, control of the Supreme Court of Puerto Rico was a prize that had long eluded the pro-statehood New Progressive Party (NPP). Since 1952, it had been in the firm grasp of the pro-commonwealth Popular Democratic Party (PDP).
The Constitution of Puerto Rico originally set the number of judges in the Supreme Court to 5, but it does enable the tribunal to change the number of sitting judges if it deems it necessary. This prerogative has been exercised in the past, with the tribunal having reached a number of 9 judges by the 1970’s. However, in 1976 the members of the court decided to lower the number to 7 judges, citing that a lower case workload did not justify 9 judges anymore.
It was this decision that denied the incoming governor for the pro-statehood party (which favors that Puerto Rico become a state of the US), Carlos Romero Barceló, the opportunity to nominate replacements for the 2 outgoing judges. This would cost the party dearly as by the early 1990’s the PDP (which favors Puerto Rico's actual commonwealth status) would come to hold a 6-1 advantage in judges [es]. In 1994 pro-statehood Governor Pedro Rosselló González proposed in a refererendum to change the Constitution and set the number of judges to 9. This change would have given the NPP the judges it needed to control the court [es]. However, the measure which was heavily opposed by the pro-commonwealth party, was defeated by voters.
The 2008 election turned out to be the NPP’s golden chance to take over the court. Three spots had opened up from 2004 to 2008, but the pro-commonwealth Governor Aníbal Acevedo Vilá did not submit any nominations knowing that the NPP controlled Senate would never confirm his nominees. The NPP had good political reasons to block these nominations as these 3 openings represented its chance to take over the Supreme Court if it prevailed in the 2008 elections. A post from July 2008 by Francisco Ortiz Santini in the blog Soy de Borinken [es] underscored the importance of the coming election:
Esas elecciones decidirán también si será el estadolibrismo, o de lo contrario el anexionismo, el movimiento ideológico que controlará el voto mayoritario en nuestro Tribunal Supremo, durante los años por venir. Por ese solo hecho, estas elecciones son las más importantes desde la fundación del Estado Libre Asociado en 1952.
As it turned out, the NPP’s gamble worked as it obtained a crushing victory over the PDP in the 2008 election. As a result, the winner for the pro-statehood party, Luis Fortuño, was able not only to fill the 3 vacancies with NPP affiliated judges, but also to nominate a fourth judge due to the retirement of the senior judge Efraín Rivera, giving the party a 4-3 majority in the court and control of the 3 branches of government for the first time in history. The grip the NPP has on the tribunal was solidified last week as the court voted 4-3 along partisan lines to increase the number of judges to 9, which would give the NPP a solid 6-3 majority in the court for years to come.
Hiram Meléndez Juarbe, of the blog Derecho al Derecho [es] has been highly critical of the decision and characterizes it as purely political [es]:
En esto a uno no le gusta tener razón pero, lamentablemente, es incuestionable. No le puede caber duda a nadie, que hoy la Rama Judicial se gradúa como una rama política, como todas las demás, y pierde irreparablemente la confianza pública necesaria para fungir como el garante de derechos y árbitro imparcial de controversias sociales y políticas.
In a response to Torres [es] (as well as on a post on her own blog [es]), Érika Fontánez Torres, from the blog Poder, Espacio y Ambiente [es] brings up the question “why not 9?” and urges to look beyond politics in the discussion:
…más allá de una discusión sobre ‘si hacen falta 7 o 9 jueces’, mi invitación sería a pensar (repensar, tal vez?) si después de todo el número 9 es o no un mejor número, aún en estas circunstancias. Lo dejo a manera de provocación para discusión…
Luisa Burgos, of indymediapr.org [es] observes that despite the claims that this is a blatant politicization of the court, this is by no means anything new:
Contrario a lo que se nos enseña, el Tribunal Supremo no es una institución apolítica que ahora se está politizando trágicamente. Sus miembros llegan allí mediante nombramientos políticos del partido en el poder, y en todo caso siempre han defendido el estatus quo y a los sectores poderosos, con pequeños remiendos aquí y allá para que no se desestabilice demasiado la cosa. El papel de víctima que asumen ahora los jueces nombrados por el PPD no les queda.
Meanwhile, the Center for Investigative Reporting [es] has just published that as a representative of Puerto Rico in the United States Congress from 2004 to 2008, Luis Fortuño introduced two measures and co-sponsored a third one condemning Venezuela’s president [es], Hugo Chávez, for increasing the number of judges in Venezuela’s Supreme Court from 20 to 32 to solidify his power in the courts. When questioned about the comparison, Governor Fortuño responded [es]:
Me siento muy orgulloso en cuanto a mi proceder en Puerto Rico, del respeto que he tenido por las otras dos ramas de gobierno.
*Photo by Nick Bramhall taken from Flickr and republished under CC License Attribution-SA-2.0.
Actually, I don’t think it was the NPP who was gambling going into the 2008 election. As mentioned, then Governor Aníbal Acevedo Vilá had ample opportunity to nominate candidates to fill Court vacancies. Granted it would have been very difficult to get confirmation of his nominees from the NPP-controlled Senate, but this hardly excuses his lack of action. His strategy should have been simply to exercise his constitutional prerogative to nominate, and let the Senate explain their refusal. In time, given enough iterations of this exchange, perhaps enough pressure would have mounted to force the Senate to act. Keep in mind that at the time, the Senate was dominated by the so called “Auténticos” group, which in the past had shown some affinity with the Executive.
If anything, Acevedo Vilá, realizing that his political control and power was dwindling, was the one who gambled. The PDP political campaign stressed out the importance of regaining control of the executive and legislative branches in order to keep a pro-statehood administration from controlling the Supreme Court, the Office of the Comptroller, the Ombudsman, and the Office of Government Ethics. He effectively tried to sway voters appealing to the perceived importance of these posts. It was this gamble that did not pay off.
Ultimately, given the nature and design of the Supreme Court, it is virtually impossible to avoid partisanship within its walls. The only difference now is that the NPP has obtained control and is seeking to maintain it for some time. This happened before with the PDP (1976 with the reduction of judges; 1992 with the creation of the Court of Appeals, for which Governor Rafael Hernández Colón continued to fill seats even after Dr. Pedro Rosselló had won the election), and is a lock to happen again. (In fact, PDP President Héctor Ferrer is already “exploring” the possibility of eliminating the Court Appeals if they regain control in 2012. I hope that current critics stay consistent with their arguments if this happens.)
Absent a new design (perhaps the one proposed by the PIP: a Judiciary Council entrusted with the task of evaluating candidates to all judicial posts and then submitting a list of qualified candidates to the Governor; perhaps some form of this principle; perhaps something entirely different that minimizes arbitrary, unexplained nominations), this is all much ado about nothing. It is not “the graduation of the Judicial Branch as a political branch”, because from its inception it was designed to be just that.