Spanish Constitutional Crisis Ends with Whimper

Conservatives accept three progressive judges in order to avoid changing the nominating rules.

Pedro Sánchez
Prime Minister Pedro Sánchez speaks at a congress of the Spanish Socialist Workers’ Party in Huesca, October 1, 2019 (PSOE/Eva Ercolanese)

The constitutional crisis triggered by Spain’s highest court a week before New Year’s has ended with a whimper.

The Constitutional Court suspended a debate in parliament for the first time since the end of the dictatorship. Prime Minister Pedro Sánchez spoke of “an unprecedented situation in our democracy.”

At stake were reforms of the Constitutional Court itself. Sánchez’ left-wing coalition had proposed to lower the threshold needed to appoint justices from three-fifths to a simple majority in order to override a veto by the conservative People’s Party.

A majority in Congress, the Spanish lower house, approved the reforms. The People’s Party then asked the court to stop a debate in the Senate, arguing the changes were improperly introduced: as an amendment to penal reforms rather than a separate law. The six justices appointed by the People’s Party, including two whose terms had expired and who refused to recuse themselves, agreed this technicality warranted an historic breach of the separation of powers. The five appointed by Sánchez’ Socialist Workers’ Party sided with the government.

It was a new low in the politicization of the Spanish judiciary. After Sánchez became prime minister in 2018, a minority of conservative lawmakers blocked every judicial appointment they could. Their hope was to overturn the social democrat’s liberalizations, including the legalization of euthanasia and recognition of transgenders, and prevent the Constitutional Court from changing hands before the election in December.

Conservatives finally relented, and agreed to confirm three progressive judges, in order to avoid a permanent lowering of the required majority. That means Sánchez’ other reforms are probably safe.

Conservatives offer compromise

Two of the twelve Constitutional Court justices are appointed by the General Council of the Judiciary, the same chamber that appoints all lower-level judges. The council had been deadlocked between ten conservative and eight progressive members.

The conservative ten compromised on the last day of December by nominating one right-leaning judge, César Tolosa, and one left-leaning judge, María Luisa Segoviano, to the Constitutional Court. The progressives agreed.

The outgoing conservative justices of the Constitutional Court accepted two more nominations by the government: former justice minister Juan Carlos Campo and the vice-president of Catalonia’s top legal advisory council, Laura Díez Bueso. Both are center-left.

The four appointments give the progressives a majority for at least nine years; the length of Constitutional Court terms.

The remaining eight justices are appointed by parliament. The Senate will soon have to find a replacement for the right-leaning Ricardo Enríquez Sancho.

Bitter aftertaste

Agustín Ruiz Robledo, a professor of constitutional law at the University of Granada, writes that the crisis has dissolved without a trace, “like a sugar cube in tea.” But it has left a bitter aftertaste:

“The sad division within the Constitutional Court by blocs has become evident, even on very technical issues” — like whether to hear the People’s Party’s request to suspend parliamentary debate — “where it is not easy to see ideological differences, but rather strategies of action to achieve a previously desired result.”

Conservatives deserve blame for taking four years to accept the obvious compromise: giving the left a majority on the court, after Spanish voters gave the left a majority in two elections. But it doesn’t look like voters agree. Polls have the People’s Party up 4 to 7 points.