The Problem of judge selection in Argentina

Since 1997, the Argentinian Council of the Magistracy has changed its norms several times, establishing various institutional designs and leading to heated discussions over their compliance with the constitutional requirements. This prompted the intervention of the Supreme Court, which on two occasions ruled on the conformations proposed by amendments to the law. 

There has also been debate on the problems these legal make-ups cause in judge appointment processes. Thus, a context arose in which the need to reform the structure and the internal mechanisms of the Council has become vital.

In this report, the Association for Civil Rights (ADC) inquires into the procedures for nominating magistrates in the Federal and National Courts and the rules that govern them, seeking to identify some of the problems that arise throughout the process. Namely: the characteristics of those evaluating would-be judges, the delays in the different stages, the instances that allow discretionary decision-making, and the inclusion of the gender perspective and ICTs. 

For this purpose, the last 17 selection processes completed in the Magistracy Council and submitted to the Executive between 2019 and 2021 were sampled as units of analysis. The examination and systematization of the findings engendered this report as a descriptive diagnosis of the Council’s actual functioning, reaching the following conclusions:  

First, the structure affects the quality of the judge recruitment processes. Several aspects of the competitions are regulated by norms or resolutions of the Council that should be encompassed by a specific law passed by the National Congress, as required in Article 114 of the Argentinian Constitution. Among them are the evaluation and interview stages, which require further legal clarification and the introduction of the gender perspective.

Furthermore, there is no particular stage in which delays are more frequent but they rather occur throughout the whole course of action, on occasions explicitly breaching the legal and regulatory deadlines. This poses a serious problem given the institutional importance of the Council as the constitutional body in charge of appointing federal magistrates.

On the other hand, good performance in the opposition test does not guarantee aspirants a place in the final shortlists. Background information, challenges, and personal interviews prove to be the most decisive – and opaque – stages of the process. Likewise, the preeminence of Judiciary staff or the so-called natural candidates in the shortlists must be examined in light of the guarantee of equal treatment concerning those from the free practice of the profession and the academic field. 

It should also be noted that the composition of the juries do not comply with the correct composition of persons with specialized knowledge, updated and closely linked to the specific topics of the subject of each competition. In addition to this, access to the contents that are evaluated is cumbersome, aside from those listed in the syllabus. Finally, the levels of female participation in the processes are significantly lower than those of men. 

These conclusions show the need for further empirical studies on the actual procedures of the Council, especially in the mechanisms of judge recruitment. Without concrete and accurate diagnoses of the dynamics taking place within these institutions, it is difficult to face the challenge of undertaking legal reforms that will last over time.