Mexico’s judicial reform could be a headache-in-waiting for the United States

Mexican judges are raising alarms in the United States over President Andrés Manuel López Obrador’s proposed judicial reform, which opponents see as a death knell for Mexican democracy.

The radical reform package could also rattle the business and investment environment in Mexico, the United States’s biggest trading partner.

The judges are mounting a last-ditch effort to shine an international spotlight on the reform package, counting on U.S. economic interests to attract attention to a concern likely to be overshadowed by a litany of domestic and international issues, from the U.S. election to the wars in Gaza and Ukraine.

Under the proposal, Mexican federal judges would be elected by popular vote, something the country’s existing judges say could directly affect U.S. interests.

“If the reform were fulfilled and all the judges and magistrates were removed in a radical way in the next three years, it would not be possible to comply with our international obligations, specifically with chapter 23 of the [United States-Mexico-Canada Agreement (USMCA)],” said Rogelio Alanís García, a Mexican circuit court magistrate, referring to the treaty’s chapter on labor disputes.

Alanís and fellow magistrate Michele Franco González on Monday called on the Inter-American Commission on Human Rights (IACHR) in Washington to evaluate whether the reform proposal would violate Mexico’s bilateral and multilateral treaty obligations, filing a complaint signed by more than 1,100 Mexican federal judges and magistrates.

“If Mexico, in exercising its sovereignty, has the right to discuss and approve the legal reforms it considers pertinent, it must do so respecting the international agreements it has subscribed. Starting with the USMCA,” said Martha Bárcena, who served as Mexico’s ambassador to the United States from 2018 to 2021.

The proposal has already created some cross-border tensions, as López Obrador and President-elect Claudia Sheinbaum have criticized U.S. Ambassador Ken Salazar, who said the reforms could “help cartels and other bad actors take advantage of inexperienced judges with political motivations.”

Mexico on Friday sent a formal diplomatic complaint after Salazar asked for a dialogue on the reforms. López Obrador and Sheinbaum have said they’re open to dialogue — but not on internal affairs.

Yet North America’s economic and social integration all but guarantees the reform package will reverberate beyond Mexico’s borders.

“I think there are three very important dimensions. The first one is about a democratic state in Mexico. And I think that with this reform, plus other things that have been happening in terms of how the National Electoral Institute (INE) has decreed the number of seats by proportional representation, Mexico is on the cusp of becoming an illiberal democracy with a hegemonic single party rule like in the good old days of the [Institutional Revolutionary Party (PRI)],” said Arturo Sarukhán, who served as Mexico’s ambassador to the United States from 2007 to 2013.

The expansive scope of López Obrador’s reform is only in the cards because his party, Morena, and its allies are on the verge of seating a near-supermajority when the new Congress convenes Sunday.

Mexico’s proportional representation system was built over decades to chip away at the single-party hegemonic rule under the PRI that dominated Mexican politics from 1929 to 2000, ensuring minority parties seats in both chambers of Congress.

Under that structure, a fraction of each chamber’s seats is won by direct popular vote in each state or congressional district, and the rest are assigned depending on each party’s overall performance in the general election.

To prevent individual parties from gaining supermajorities through proportional representation, the constitution limits how many seats each party can be assigned relative to its performance at the polls.

But López Obrador’s triparty alliance seems to have found a glitch in the system by spreading its winnings among the three parties, gaining 364 of 500 seats in the lower chamber — well above the two-thirds majority needed for constitutional reforms — and 83 seats in the 128-member Senate, just three votes short of a constitutional supermajority.

Still, Mexican democracy is an intangible, if important, asset in the U.S.-Mexico relationship. The reform’s opponents say more immediate issues are at stake.

“Number two, it has to do with organized crime. And organized crime, which as we saw in the 2021 midterm elections in Mexico – and particularly in states like Sinaloa in the northwest – organized crime whipped or suppressed the vote in favor of Morena, and with judges that would now have to compete in open elections for their bench, it puts a target on judges that can be either bought, intimidated or killed by organized crime,” said Sarukhán.

The third issue that has observers of the bilateral relationship on edge is the USMCA and elected judges’ ability — and willingness — to rule fairly on disputes involving foreign investors.

But the judiciary overhaul is only one piece of López Obrador’s massive reform package for his last month in office.

“I believe the judicial reform impacts judicial certainty and the rule of law in Mexico, and therefore, it could affect the fundamentals on which USMCA was signed. But the proposal to disappear independent agencies is as grave as the judicial reform,” said Bárcena.

“The combination of both proposals is a bigger threat to the rule of law, it hinders technical dialogue in fundamental issues of North American integration.”

Mexico’s Chamber of Deputies on Friday advanced a bill that would nix seven independent agencies, ranging from the country’s public transparency and information access watchdog to its antitrust regulatory body.

Both López Obrador and Sheinbaum have dismissed those criticisms.

Sheinbaum in particular pointed to the United States, where she said 43 states elect their judges.

Mexico’s proposal to elect the federal judiciary would be much more expansive.

Federal judges in the United States are nominated by the president and approved by the Senate. The 43 states that do hold judicial elections have a number of systems, including retention elections, where sitting judges essentially face recalls periodically.

Rep. Vicente Gonzalez (D-Texas), whose district borders Mexico, warned Sheinbaum and López Obrador to be careful what they wish for, given Texas’s experience with partisan judicial elections.

“It certainly politicizes the court system. And you’ll have judges actually campaigning on ideologies in order to get elected. In a perfect system we would have professional judges somehow nonpolitically appointed or elected who have been trained to execute the laws justly and blindly, not as conservative or progressive – we let the legislature do that,” said Gonzalez.