Judicial Reform as Insurance Policy: Mexico in the 1990s

Analysis

What have been the effects of this reform package on the Mexican judiciary? This question can be answered by examining changes to the judiciary's neutrality (impartiality and insulation) and authority (institutionalization and jurisdiction).

On the -whole, the reforms improve the neutrality of the judicial branch. They promote the development of judicial impartiality; and in particular, the new appointment procedures decrease the opportunities for partisan selection of justices and judges. At the Supreme Court level, the requirement of a two-thirds majority rather than a simple majority for Senate confirmation of nominees makes it difficult for any one party singlehandedly to choose its own candidate, and they promote the selection of nonpartisan justices.

The weakened insulation of Supreme Court justices, however, is cause for concern. The decrease in the security of office for Supreme Court justices from life tenure to 15-year terms undermines a key safeguard of justices' impartiality. While life tenure was the norm in the Mexican judicial system before the reform, it had little value, because justices saw the court as a stepping-stone to a better political post, not an end in itself. Thus the structure of the incentive system discouraged impartial rulings, as judges were re-warded with better job placement in exchange for decisions amenable to the ruling party. Before the 1994 reform, justices remained on the court about 10 years on average; only 20 percent of justices served for longer periods. Justices chosen from outside the judicial branch were particularly likely to abandon the court for more attractive political positions (Cossio 1998a). The new 15-year limit institutionalizes this problem because younger justices will be compelled to retire from the court at an age -when they may still be in the job market and seeking career advancement.

On the other hand, two nonstructural variables have significant implications for the independence of the Supreme Court in Mexico and must be addressed in any analysis of Mexico's high court. The first is the country's changing domestic political environment. The demise of oneparty politics alters the incentive structure for Supreme Court justices (Domingo 2000). A justice can no longer be certain that a future president, at a time -when the justice might seek another political office, will belong to a particular party. Similarly, rulings that appear partial to a particular party and that do not appear to represent an impartial decision based on the law and the facts could eventually cost a Supreme Court justice political standing. Because of this contingency, the best course of action for a justice may no longer be to issue legal rulings in the hope of currying favor with the government.

The second important nonstructural change is the selection of justices who are dedicated to a career in the judiciary. The naming of justices who view a seat on the Supreme Court as the pinnacle of their career rather than as a strategic move toward a coveted political office provides justices with an incentive to foster the prestige of the Mexican Supreme Court.