Marchena resigns to go to the Constitutional Court and complicates the plan of the conservative sector of the Judicial Power

The negotiation within the General Council of the Judiciary (CGPJ) to appoint the two magistrates that correspond to it in the Constitutional Court has encountered an important prior stumbling block: the difficulty of finding candidates who generate consensus and who are willing to occupy those two seats.

The conservative sector of the CGPJ advocates appointing Manuel Marchena, president of the Criminal Chamber of the Supreme Court and drafter of the

;

but this, whose profile is also well seen in the progressive sector, has declined the proposal, and that complicates the possibility of reaching an agreement.

In the Council there is already a solid majority of members in favor of making the Constitutional appointments and not boycotting, therefore, the legal reform promoted by the Government -with an ultimatum that expires on September 13- to unblock them.

However, the most critical members of this reform within the conservative sector of the organization are considering not getting involved in the operation -trying to delay it as much as possible- if they cannot find candidates they consider to be of high standing.

This sector insists on the suitability of Marchena because it predicts that strong counterweights are going to be needed in the Constitutional Court against the progressive majority that is going to take place imminently in the court of guarantees as a result of the appointment of two other magistrates by the Government.

The president of the Criminal Chamber of the Supreme, however, has been irreducible in his refusal to accept that his name be used as a candidate to occupy a position in the Constitutional Court.

Marchena's resignation therefore makes it difficult at this time for the renewal to be carried out with a large majority, or even unanimously, in the General Council of the Judiciary.

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The Judiciary assumes that the Constitutional will be renewed in September

Four of the 12 seats on the Constitutional Court have been pending renewal since June: these are the two that correspond to the Government and the two to the CGPJ.

If the renewal takes place, the court will foreseeably go from having a majority of conservative magistrates to having it of progressive magistrates.

To speed up this operation, the PSOE announced in June a bill that would return to the Judiciary the ability to make these appointments even while in office (because its mandate has also expired).

And in July he introduced even more pressure by introducing a parliamentary amendment requiring the Council to make these appointments before September 13.

Several members of the governing body of the judges, mainly from the conservative sector, revolted against these hasty changes,

The renewal of the Constitutional Court only depends, therefore, on whether the conservative and progressive sectors of the Council find and can convince their candidates to fill the two seats.

The conservative bloc is finding special difficulties in this, because some of the magistrates with whom it has contacted have given a negative response.

Not only Marchena: Judge Antonio del Moral, whose candidacy, if proposed, could also achieve broad support in the Council, has also shown his preference for continuing in the Supreme Court's Criminal Chamber.

In view of the difficulties, a part of the conservative sector of the CGPJ, despite being opposed to the legal reform of the Government, has opted to push for consensus, supporting the attempts of the President of the Council and the Supreme Court, Carlos Lesmes, so that the renewal of the Constitutional materializes in September.

But another minority part, made up of the members of the conservative group most opposed to the initiatives of the Executive, insists on not participating in the unlocking unless it obtains certain guarantees.

The main one: that a magistrate be appointed who, based on his profile and career, can be expected to lead a solid conservative bloc.

This sector will remain in the minority in the Constitutional Court after the renewal, but precisely for this reason said bloc is looking for a strong candidate,

The Constitutional had promised to resolve this resource before the end of its mandate, on June 12.

But it has not done so, because the president of the court, Pedro González-Trevijano, has preferred that the ruling remain pending again so that the guarantee body can face it with its new composition.

With this, Trevijano wanted to prevent the court from dividing again on a very sensitive law from the political and social point of view.

After the renewal of the Constitutional Court, this court will have a progressive majority of seven to five ―if the replacement for conservative magistrate Alfredo Montoya, who resigned last July for health reasons, is also elected― or from seven to four ―if that replacement , which depends on another complicated agreement between PP and PSOE in the Senate, is left for later.

In the Council of the Judicial Power, in the Supreme Court and in the Constitutional itself, the idea is widespread that, with a progressive majority in this court, there are great possibilities that its next president will be Judge Cándido Conde-Pumpido, former Attorney General of the State .

Judge María Luisa Balaguer, Professor of Constitutional Law, also meets all the requirements to hold the position, so her candidacy is not ruled out.

An encounter with Sánchez and seven calls from Casado

The president of the Criminal Chamber of the Supreme Court, Manuel Marchena, has responded the same to those who have sounded him out so that he agrees to give way to the Constitutional Court: that he considers it a priority to continue his work in the Supreme Court.

Marchena has two years of presidency left at the head of said Chamber.

Those who have spoken with him to urge him to accept being a candidate for the guarantee body explain that he responded negatively because he has not changed his mind about where he should continue his career since in 2018 he resigned to run for the presidency of the General Council of the Judiciary and of the Supreme.

That resignation came after the dissemination of a WhatsApp message in which the then spokesman for the PP in the Senate, Ignacio Cosidó, advocated using Marchena to control the Criminal Chamber of the high court "from behind".

Marchena has assured these interlocutors that his decision is firm, despite being aware that he could count on high support in the governing body of the judges and also generate political consensus.

In July 2020, the judge held a long interview with the President of the Government, Pedro Sánchez, in La Moncloa, in which the possibility that he might be a candidate for the presidency of the Council of Judicial Power and of the Supreme Court was mentioned again, in the context of a supposed pact with the PP that was not reached then and that is still pending.

In turn, the former popular president Pablo Casado had with Marchena - always according to what he has related to those who have probed him - up to seven telephone conversations about the same hypothesis, an idea that he rejected.

Marchena has two years left as president of the Chamber that issued the sentence of the

or more recently that of the ERE, and that has jurisdiction over cases that affect aforados.

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