The day García-Mansilla said in the Senate that he would not have agreed to be appointed by decree
Manuel García-Mansilla appeared before Congress last August, at a public hearing in the Agreements Committee, to defend his nomination as a candidate for the Supreme Court. The Kirchnerist senator Anabel Fernández Sagasti asked him then if he would have accepted being appointed on commission and he, although he said that such an appointment was constitutionally valid, replied that he would not have agreed. Six months later, Javier Milei appointed him by decree.
Fernández Sagasti's question referred to Mauricio Macri's decision, when he was president, to appoint Horacio Rosatti and Carlos Rosenkrantz by decree. It was a path that did not advance because finally the two obtained the Senate's agreement and were appointed in the specific way that the National Constitution provides for appointments to the highest court of the Nation. García-Mansilla argued in the Senate, as a reason for saying that he would not have accepted being appointed by commission, the negative impact that decree 83 of 2015 (Macri's appointment of Rosatti and Rosenkrantz) had on society.
Fernández Sagasti asked: “Would you have agreed to be appointed by President Milei on commission as a minister of the Supreme Court of Justice of the Nation in accordance with your loyal defense regarding this when President Macri did so?”
The candidate responded: “Given the impact that decree 83 of 2015 had on public opinion, I would not have accepted a commission nomination because beyond the fact that the Constitution provides for it, there is clearly a large sector of the population that, for good reasons, resists this type of decision that is the exclusive domain of the President. Therefore, beyond the fact that as soon as the decree was issued I published an article [in which I said that the commission appointment was not unconstitutional] simply to make a contribution to the debate, given the impact it had, I would not have accepted that nomination .”
The professor's entourage later explained that this response had to be put into context . "It was a response to a hypothetical question. He said that he would not have accepted being appointed to the commission in 2015. And he clarified that this was his opinion based on Monday's newspaper. Contexts are important," said the academic's collaborators in response to a question from LA NACION .
On the day he responded to Fernández Sagasti in the Senate, García-Mansilla added: “There are certain powers that the constitutional powers have that can, when they are exercised, even though they are constitutional, affect an institution . I will give you an example: the expansion of the Supreme Court judges. It depends on the context in which it is done, although it is a strictly constitutional power, Congress has the power to determine the number of judges that make up the Supreme Court, depending on the context in which that decision is made, it can affect the court.”
“That happened -continued García-Mansilla-, for example, at the time when Law 23,774 was passed, a perfectly constitutional decision, but which had an impact that generated discredit in the Judiciary because, as it was perceived at that time, I don't know if it is real or not, but that is how it was perceived, that decision taken by the government in power and which in turn had a majority in the Senate, was taken to modify the interpretation that the Supreme Court made of the National Constitution.”
García-Mansilla concluded: “So: there are certain measures that are constitutional, but depending on the context in which they are taken, they can generate an impact and that is why the answer is: 'I would not accept a commission appointment with the Monday newspaper .'”
Fernández Sagasti then asked García-Mansilla if he understood that being appointed on commission restricted the independence of the judge appointed in this way when resolving a case against the National Executive Branch. “In a hypothetical and abstract case, because you have just said that you would not have accepted and in fact, constitutionally, you have been elected as established by the Constitution,” the senator clarified, referring to the fact that García-Mansilla was facing this commission, precisely because Milei had sent his brief to the Senate to follow the regular path established by the Constitution.
Fernández Sagasti added that his question was about “a judge who accepts being appointed on commission and is faced with a case, for example, of a tariff increase, whether that would not affect the final control of constitutionality of the Argentine Republic.”
García-Mansilla replied: “In the hypothetical case that you are suggesting to me, it could be the case that a judge appointed on commission has a certain lack of independence. I imagine a hypothetical case in which the Executive Branch can appoint judges on commission and that they rule in favor of the interests of the Executive when they enter the Court, even in the short period of one year. Yes, it is possible.”
Fernández Sagasti took up the matter: “I ask you because if this Senate gives you the agreement, you will have two colleagues who agreed to be appointed members of the Court. This was later validated, but they have a sin of origin.”
At that time, everything seemed hypothetical because it was not foreseen as an option that García-Mansilla himself would be appointed by decree.
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