Why Mexican judicial reform is causing a rift with the US

The United States and Mexico have had a conciliatory relationship for six years under President Andrés Manuel López Obrador. But weeks from leaving office, he has heralded a judicial reform that has generated rare public criticism from the U.S. ambassador – and provoked a rift in U.S.-Mexico relations.

Mr. López Obrador is widely popular, and the Mexican public broadly supports the reform.

But judges, law students, economists, human rights experts, and Mexico’s most important trading partners worry it could lead to democratic backsliding – and macroeconomic turbulence – that the incoming President Claudia Sheinbaum will inherit when she takes office Oct. 1.

What exactly is this reform?

The judicial reform, approved by a committee in the lower house of Mexico’s Congress this week, will be sent to the new Congress next month.

It’s part of a broader constitutional reform package and would overhaul how judges – from local levels to the Supreme Court – get their jobs. The system would move from appointing justices based on their training and qualifications to letting citizens decide some 7,000 judge, magistrate, and justice positions by popular vote.

Mr. López Obrador’s term has been defined by his desire to transform the nation. He rose to power promising to end inequality, eradicate violence, and strengthen democracy. He says the current legal system only serves the country’s elites, and judicial reform is key to cutting out corruption and laying the groundwork for the incoming president, a close ally, to continue his vision for Mexico’s transformation. 

But many see this as a political play by the outgoing president.

“This is personal revenge against the justices of the Supreme Court,” says Emiliano Polo, a Mexican lawyer and associate at the Mexican Council on Foreign Relations. Sitting justices have blocked the president’s past attempts to change the Constitution, including overturning legislation that would have put the civilian-run National Guard under the purview of the military and that would have changed how public servants use government advertising in electoral races.

The judicial reform is all but guaranteed to pass. In the new legislative term, which begins next week, the ruling party will have a supermajority in the lower house and be just a few votes shy of the same control in the Senate. The ruling party “already has the executive branch, already controls Congress. The last man standing was the judiciary,” says Mr. Polo.

Why does the U.S. care so much?

Proponents say the proposed judicial reform will fix a system that notoriously fails the public. But critics say it will weaken a key check on presidential power and make the courts more vulnerable to the influence of organized crime, as candidates for judgeships could become beholden to donors.

They also worry that inexperienced judges could reach the bench through political favors rather than on merit. As it is now, it can take 25 to 30 years to become a federal judge, says Mr. Polo. “The requirements to become a federal judge in Mexico are extremely, extremely hard.” 

The judicial reform proposal could have the most immediate effect on international investment, however. Trade requires “legal certainty, judicial transparency, and clarity,” said the American Chamber of Commerce of Mexico in an Aug. 26 statement, warning that it sees these elements at risk in the proposed reform.

U.S. Ambassador Ken Salazar called the reform a threat to Mexican democracy and said it would expose the judicial system to the influence of powerful cartels. His comments, and similar criticisms made by the Canadian ambassador to Mexico, led to backlash this week, when Mr. López Obrador said he was pausing relations with both embassies. “They have to learn to respect the sovereignty of Mexico,” he said at his daily news conference Aug. 27.

The U.S. and Mexico are each other’s biggest trading partners, and the reform may violate terms of the North American trade agreement known as the USMCA, formerly NAFTA, says Yussef Nuñez, an analyst at EMPRA, a Mexican political risk firm. The reform “is going to put more stress on bilateral and regional dynamics.”

But doesn’t the justice system need reform?

Absolutely. One figure alone underscores that: Impunity for violent crime is nearly 95% in Mexico. Also, police aren’t well trained in investigating crimes, and the judicial system tends to presume guilt, not innocence. It’s common for people charged with crimes to serve months – even years – in detention before having their cases heard.

The president is leaving office with historically high approval ratings – around 70% – and Dr. Sheinbaum won the top office with a record number of votes. According to government-commissioned surveys carried out by private companies earlier this summer, the public stands behind the reform.

But critics, among them many judges and law students, have gone on strike in recent days to protest it.

“We need an independent judiciary, staffed by people with solid preparation,” said Norma Lucía Piña Hernández, the current head of Mexico’s Supreme Court, at an international conference on judicial independence this month. The reform could “delay justice” for Mexicans.

These critics worry that Mexico may be joining the ranks of other countries in Latin America, like El Salvador, where a popular president has undercut democracy with broad public support. El Salvador has some of the highest levels of satisfaction with democracy in the region, despite its president repeatedly chipping away at independent institutions and concentrating power in the executive.

Mexico is a relatively young democracy, making its judiciary an independent institution from the executive only in the mid-1990s, as it emerged from one-party rule and joined NAFTA.

But democracy hasn’t been a panacea. “Democracy has this whole hype that it will improve everything, but it is also associated with neoliberal policies that have exacerbated inequalities,” says Mr. Nuñez.

“López Obrador was the first to directly talk to vulnerable social classes and recognize them,” he says. “His social programs have made a difference for [them]. ... They’d prefer to have his government’s aid over an autonomous judicial power.”