One by one, all the presidents who appointed Supreme Court judges by decree

President Javier Milei wanted to make it clear that he was not the first president in history to appoint a judge by decree, when signing DNU 137/25 that yesterday designated Ariel Lijo and Manuel García-Mansilla and was published today in the Official Gazette. To do so, he appealed to an extensive and historical enumeration of all the heads of state who have done so since Justo José de Urquiza, in 1853.

As explained and repeated several times in the recitals of the decree by Lijo and Mansilla, the government carried out an exhaustive survey and revealed that the historical records speak of a total of 171 years of background that support Milei's decision.

"That the survey of historical records reveals the existence of ONE HUNDRED SEVENTY ONE (171) years of constitutional practice during which both the presidents of the ARGENTINE REPUBLIC and the H. SENATE OF THE NATION and the SUPREME COURT OF JUSTICE OF THE NATION have interpreted that the constitutional clause referring to commission appointments (article 83, paragraph 23 of the Constitution of 1853: article 86, paragraph 22 of the Constitution of 1853/1860; article 83, paragraph 22 of the Constitution of 1949; and current article 99, paragraph 19 of the NATIONAL CONSTITUTION) is fully applicable to federal judges of all instances," states the decree.

In this regard, they point out that during the 19th and 20th centuries there were more than 186 appointments of federal judges of all levels, including the Court, which were made by the Executive Branch. Among the presidents who made use of this power, prior to Milei, are:

In his decree, Milei even cites the government of Raúl Alfonsín, the president he most publicly denigrates, as a precedent. He claims that the radical appointed more than 16 federal judges of various instances on commission between 1983 and 1985.

Milei's DNU also distinguishes which president appointed judges on commission to the Supreme Court, that is, under the same process that he now promoted after the failure of the treatment of the Lijo and García-Mansilla files in the Senate, where they were entered, one - that of the Comodoro Py judge - had a ruling, but none were ever discussed in the chamber because the Executive did not have the votes to approve them.

"The practice of the President of the Nation exercising the constitutional clause that enables him to make appointments of federal judges on commission to fill vacancies in the Court has existed since the National Constitution was sanctioned in 1853," the decree states, and states that, as soon as the Constitution was sanctioned in 1853, Justo José de Urquiza appointed all of the members of the Court in this manner on August 26, 1854. "The following were appointed in such capacity: doctors Gabriel Ocampo, José Roque Funes, Francisco Delgado, Martín Zapata, Facundo Zuviría, Bernabé López, José Benito Graña, Nicanor Molinas and Baldomero García," lists DNU 137/25.

"Since 1860 onwards, there have been various cases of appointments of judges to the Supreme Court of Justice of the Nation that were made on commission. After the resignation of Dr. Valentín Alsina, Judge Francisco De las Carreras was appointed on commission as president of the Court by President Bartolomé Mitre by means of the decree of January 6, 1863, which appears as Document No. 5799 of Volume Five of the National Registry of the Argentine Republic," was reported in the Official Gazette.

More examples given by the libertarian government: Judge Uladislao Frías was appointed on commission by President Nicolás Avellaneda by decree of January 14, 1878; Judge Luis V. Varela by Juárez Celman by decree of April 3, 1889; Judge Abel Bazán also by Celman on January 14, 1890; Judge Benjamín Paz by Carlos Pellegrini replacing Luis Sáenz Peña by a decree of March 29, 1892; Judge Dámaso Emeterio Palacio by Figueroa Alcorta after the retirement of Octavio Bunge, on April 21, 1910.

More recently, the Government gives the examples of the current judges of the Court, Carlos Rosenkrantz and Horacio Rosatti, president of the body, who were appointed on commission by Mauricio Macri through Decree No. 83 of December 14, 2015, although they were subsequently appointed in accordance with the procedure established in article 99, paragraph 4 of the National Constitution, after the scandal that their appointment by DNU generated in public opinion.

To all of the aforementioned historical records, the Milei administration also added a few paragraphs dedicated to jurisprudence in the United States, "That the constitutional practice of the United States confirms what has been stated, since official reports prepared by the Department of Justice show that, since 1789, the various American presidents made more than 300 commissioned appointments of federal magistrates, 15 of which corresponded to the position of judge of the federal Supreme Court."

"Therefore, just as in the Argentine Republic the constitutional practice of appointing federal judges of all instances by commission has been in force for 171 years, in the United States that practice has existed for 235 years," he explains.

In this regard, the decree states that "at the time when our constituents incorporated into the text of our National Constitution the provision referring to commission appointments taking as a model the aforementioned clause of the US federal Constitution, they did so in the knowledge that the rule they took as a source was fully applicable to commission appointments intended to fill vacancies that arose in the positions of federal judges at all levels."