On September 15, the eve of Mexico’s Independence Day, outgoing President Andres Manuel Lopez Obrador, popularly known as AMLO, announced the adoption of a sweeping overhaul of the country’s judicial system following its passage by both houses of the country’s legislature. Americans have ample reason to be concerned about these changes – both as a matter of U.S.-Mexican relations, and as a harbinger of what Democrats’ judicial “reforms” could look like here at home.
Under the ostensible reform bill, sold by AMLO as a way of ensuring that judges will conform their rulings to the popular “will” rather than that of the “powerful,” members of the judiciary—including 1,635 federal judges and magistrates and over 5,700 judges at the state and local level—will now be chosen by popular election rather than appointment. Additionally, the “reform” eliminates the exam-based career track which aspirants for higher judicial offices previously had to pursue, requiring as long as 25 years to rise to the top.
The new law, critics warn, will open the way for far less qualified individuals inevitably more interested in politics (they have to win elections, after all) than the law to become judges. As Adriana Garcia, an adviser to Stanford Law School’s Rule of Law Impact Lab, explained to The New York Times, Mexico will now be transitioning from a system that requires prospective judges to pass a series of “very difficult” tests to one in which they are chosen based purely on “popularity.”
But what are the ramifications for the United States?
It is true that 21 U.S. states choose some judges through popular elections – eight through partisan elections, thirteen through nonpartisan ones – but the stakes in such elections are considerably smaller than if federal judgeships were directly-elected positions. The Founding Fathers wisely devised a system whereby federal judges would be somewhat insulated from transient popular passions, as the Federalist Papers explain. They rightly feared a situation where judges would care more about appeasing a simple majority of voters than upholding the Constitution and legal precedent.
For these reasons, electing federal judges is extremely rare in democratic nations. In fact, the only large democracy to elect judges at the national level, thanks to a 2009 constitutional change, is Bolivia. Perhaps unsurprisingly, popular confidence in the judiciary is reported to have declined following the change.
In Mexico’s case, the judicial overhaul is widely seen as an act of retaliation by AMLO against the judiciary, which has blocked as unconstitutional such legislative measures favored by the president as putting the civilian-run National Guard under the purview of the military and changing how public servants use government advertising in electoral races. U.S. Ambassador Ken Salazar has called the ostensible “reform” a threat to Mexican democracy and warned that it will expose the judicial system to the influence of the country’s powerful criminal cartels. (His comments, and similar criticisms made by the Canadian ambassador to Mexico, led AMLO to pause relations with both embassies.)
The instability that a highly politicized and unprofessional judiciary is likely to introduce is a threat to U.S. investment in Mexico, which is America’s largest trading partner. The changes are also therefore a threat to Mexico’s own economic prosperity.
Moreover, if the judicial overhaul engenders further corruption in the judiciary, the result may be greater difficulty in blocking cartels’ incursions into the U.S.
But a deeper reason for Americans to concern themselves with Mexico’s undermining of the independence and professional character of its judiciary is that AMLO’s purported reform may serve as a harbinger of what Democratic victory in this fall’s presidential and Congressional elections could bring about here in the United States.
Beginning with the Supreme Court under former Chief Justice Earl Warren, Democrats professed a deep respect for the independence of the judiciary – so long as liberal majorities invented new “rights” ungrounded in the text of the Constitution (abortion, same-sex marriage, expanded rights of those criminally accused) while failing to uphold Constitutional guarantees banning racial preferences or limits on campaign spending. But this respect suddenly disappeared with Donald Trump’s appointment of three Constitutionalist judges.
While the new appointees have hardly voted in lock step with conservative priorities, they outraged Democrats with decisions that overturned policies dear to liberals, most notably Constitutional “rights” to abortion (Dobbs v. Jackson Women’s Health) and racial preferences in college admissions (Fair Admissions v. Harvard).
Exemplary of the new disrespect for judicial independence was the charge led by then-Senate Minority Leader Chuck Schumer in 2020 up the Supreme Court steps, warning Trump appointees Brett Kavanaugh and Neil Gorsuch that they would face dire consequences for their “awful decisions.”
“I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price,” Schumer threatened. “You won’t know what hit you if you go forward with these awful decisions,” a reference to the Dobbs decision which returned the power of legislation on abortion to the states.
Schumer and other leading Democrats have made clear that dismantling the Supreme Court’s independence will be a top Democratic priority should the party win control of the legislative and executive branches this November. Soon after withdrawing from the presidential race, Joe Biden proposed a set of “reforms” to the Supreme Court, including term limits and a “binding” ethics code, which both Schumer and Kamala Harris immediately signed on to.
Following up on Biden’s proposals, Congressional Democrats, including Senator Elizabeth Warren and Representative Hank Johnson, have called for the addition of four justices to the Court – enough to overturn decisions by the Roberts Court that they don’t like.
As Constitutional lawyers David Rivkin, Jr., and Andrew Grossman observed in a recent Wall Street Journal column, the Democrats’ determination to “bring the justices to heel” is the outgrowth of a series of rulings that struck down as unconstitutional a series of executive orders by both Presidents Obama and Biden. These included Obama’s “Clean Power Plan” and Biden’s employer vaccine mandate, moratorium on tenant evictions, and student-loan forgiveness plan.
To complement these judicial reforms, Schumer has proposed to eliminate another check on partisan governance, the Senate filibuster. While Schumer’s proposal would apply only to voting rights and abortion legislation, there is no reason, as New York Post columnist Rich Lowry points out, that Democrats wouldn’t extend it to cover such matters as granting statehood to Puerto Rico and the District of Columbia, aimed at essentially securing their long-term control of Congress.
Democrats’ dominating aim, like that of AMLO, is to eliminate institutional obstacles to the enactment of policies favored by a democratically elected president (possibly even without the consent of Congress, if it can be circumvented through executive orders that the courts won’t overturn). This would destroy the American Founders’ entire scheme of separation of powers, checks and balance, judicial independence, and a Bill of Rights, which was aimed at promoting deliberative rather than plebiscitary governance and securing individual rights embodied in the Constitution.
The American Constitution has survived for 236 years with only one interruption of peaceful governance under it. By contrast, Mexico’s political history (like that of the rest of Latin America) since independence has been largely one of a series of civil wars alternating with despotisms, combined with rampant gang violence. Citizens of that country, along with its neighbors to the south, often seek desperately (by legal or illegal means) to gain residence in the United States. For obvious reasons, rather little movement occurs in the opposite direction.
Americans should be extremely wary of following Mexico’s lead in trading in our Constitutional order for anything resembling one based on, as James Madison described it, “the superior force of an interested and overbearing majority.”
David Lewis Schaefer is a Professor Emeritus of Political Science at College of the Holy Cross.
