Another fight for Lijo: if Milei appoints him by decree, the judge plans to take leave, but the Court rejects it

The Ministry of Justice is counting down the days to decide whether to appoint by decree the two candidates of Javier Milei to form part of the Supreme Court of Justice . If this were to happen, Ariel Lijo made it known that he will take a leave of absence from his federal court when the appointment by decree is admitted in the Senate. Meanwhile, in the highest court they insist that he should resign from the position he has held for more than twenty years.
"Not everything has been said" was a phrase that the magistrate and candidate of the Head of State slipped before people he trusted when the session last week in which his application was to be discussed so that he could finally join the Court failed.
Although Lijo obtained the opinion of the Agreement Commission that supports his candidacy with signatures from Kirchnerists, libertarians, Peronists and radicals , the government did not manage to get that opinion voted on Friday in the Senate.
The National Constitution requires that candidates to join the highest court must obtain two-thirds of the senators present at the Senate session in which their applications are discussed, a special majority. If the 74 senators are in their seats, the judge from Comodoro Py requires 48 votes to obtain that number. To achieve them, the Government needs the support of Kirchnerism.
Amid the scandal over the cryptocurrency $LIBRA, the space that answers to Cristina Kirchner called for the impeachment of the Head of State, who began to be investigated by the federal courts last Friday . With negotiations in absolute tension, the Government hopes to appoint its two candidates by decree: Lijo and the academic Manuel García-Mansilla.
The decree should be signed before the beginning of the ordinary sessions that begin next Saturday. The Ministry of Justice was awaiting the return of President Milei from his trip to the United States to finalize the details of the process, which according to sources in the government would be imminent.
That possibility opens up another discussion. The president of the Supreme Court will be responsible for swearing in Lijo and García-Mansilla.
According to judicial sources, Clarín learned that over the weekend the federal judge did not receive any official communication about the next steps to follow. In fact, people close to him reported that Lijo doubted that the Decree would be used to appoint him.
With expectations placed on last Thursday's session, where the ruling party only managed to suspend the PASO, the magistrate had requested a leave of absence from his post, but only for a week.
On Monday, the judge returned to Federal Court No. 3, where he has been the judge for more than two decades.
The truth is that throughout the entire debate on the magistrate's nomination, there was a sustained message from his entourage, something that he himself let slip to people he trusted extremely: he was not going to accept being appointed by decree . He considered that by joining the Judiciary, the possibility of reaching the Court, the highest rank to which a member of the judiciary can aspire, should be through the usual institutional mechanisms, with the vote in the Senate on his nomination.
But since this was not achieved during the extraordinary session, as the government had intended, the option of submitting the appointments via presidential decree was put back into effect.
This measure modified -in principle- the criteria of Judge Lijo who, now, would accept an appointment by decree. "It is not ideal, nor what I would have chosen," said those close to him, but they note that the Executive Branch does not want to give in, for the moment, on the appointment of its initial candidates.
But that scenario is the most likely one today. And Lijo made it known that if Milei signs the decree of appointment, only then will he ask for a leave of absence for a higher-ranking position. “Not before that,” people close to the magistrate explained to Clarín .
This decision opens another discussion in the Court that the Ministry of Justice is not unaware of.
Within the highest court there are those who consider that in order to swear in Lijo with an appointment by Decree, he must resign from the ownership of his office on the third floor of Comodoro Py.
To support this criterion, they referred to an extensive list of antecedents that validate this line of thinking.
The central fact is the 1975 “Daffis” case , in which the Supreme Court held that when a judge accepts a commissioned position “he implicitly resigns from his previous position. The reason is that no one can be a judge with the consent of the Senate and be -at the same time- a judge appointed by decree.”
This criterion raises another concept: “ judges by decree are not stable judges .” On this point, the voices in the corridors of the Court are not unanimous.
Another example is the case of José Francisco Bidau, who in 1955 became a judge of the National Chamber of Appeals in Federal and Contentious Administrative Matters, in the Civil and Commercial Division. He held that position until President José María Guido appointed him a judge of the Court by means of decree 9753, of September 1962.
The appointment was made on a commission basis, after the Congress had been dissolved, and expired at the end of the first parliamentary session after it, which occurred on September 30, 1964. After failing to obtain an agreement , Bidau resigned on October 1, 1964.
This last example is not insignificant: a precedent is pointed out in which a judge left his post after being appointed on commission to the Court, but resigned from his previous post . Since he did not obtain the Senate's approval, he was left without a position within the Judiciary.
This is the scenario that Ariel Lijo will avoid under any circumstances . He will not leave the Comodoro Py office until the corresponding agreement to take over as Ministers of the Court is guaranteed, and for the moment he is only talking about taking a leave of absence, not about submitting his resignation.
Clarin