If Democrats pack the U.S. Supreme Court, they will do irreparable damage to the institution. But the harm wouldn’t end there. President Biden’s commission to study the idea is already undermining U.S. moral authority on the rule of law and the separation of powers in Latin America.
Exhibit A is El Salvador, where a newly elected congressional majority backing President
last week illegally fired the five-member Constitutional Court. The pro-Bukele congress immediately named its own handpicked court in violation of the legal process for choosing new magistrates. Congress also fired the attorney general without cause the same day.
Rep. James McGovern
(D., Mass.), who never met a left-wing Latin dictator he didn’t love, expressed his outrage on
: “Let us be clear: this is not democracy, this is the destruction of an independent judiciary and the rule of law.”
Mr. Bukele was unperturbed. He responded to the congressman by posting a puzzled, chin-stroking emoji above a news story about Mr. Biden’s new commission. The not-so-subtle message: Why not do what the U.S. does rather than what it says?
In a speech at Harvard Law School last month, Justice
warned against court packing: “If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.”
For decades, popular tyrants trying to consolidate power in Latin America have been grabbing the judiciary and calling it “legal.” Democrats have rarely objected as long as the tyrant-in-chief is progressive-approved. Mr. Bukele is not.
He was elected mayor of San Salvador in 2015 as a member of the former communist guerrilla party known as the FMLN. But by 2017, his personal ambitions swelling, the FMLN said it was kicking him out of the party.
This hardly makes him “right-wing,” as some foreign journalists describe him. He is at war with the center-right Arena party and with El Salvador’s pro-market business community. He ran for president under the banner of the splinter party Gana. But his support in congress comes from members of the populist New Ideas party, which he founded. His only ideology is absolute power.
Mr. Bukele seems to have learned a lot from Guatemala’s hard left. Around 2014 it gained control—with the help of progressive Democrats in Washington—of the U.N.’s International Commission Against Impunity in Guatemala, known as CICIG.
The powerful commission, converted into a political weapon, applied liberal use of preventive detention in its investigations of judges, prosecutors and the business community. As a result, critics of CICIG abuses in Guatemalan society fell silent and the judiciary grew compliant. Corruption flourished as the worst actors aligned themselves with CICIG to avoid prosecution.
Mr. Bukele has a similar strategy. The high-court justices were removed earlier this month using government intimidation. Yet the business community hasn’t backed down so far. Some who depend on government concessions or quotas have endorsed his agenda or remained quiet. Most are standing firm, despite public attacks and insults designed to foment hatred and government harassment in the form of multiple financial investigations.
Among the most high-profile Bukele whipping boys is the National Association of Private Enterprise, or ANEP. With 15,000 members, 93% of which are small businesses, ANEP’s mission statement posted on its website is to “promote and protect” entrepreneurship. To that end, ANEP says, “democracy, the rule of law and institutions” are crucial.
A year ago ANEP, along with four other civil-society organizations, withdrew its representative from a public-private oversight committee set up to monitor the emergency pandemic budget. ANEP said it couldn’t participate in the arbitrary and nontransparent process. Mr. Bukele accused it of trying to “sabotage” the government. A month later he instructed his cabinet to refuse to meet with ANEP. Since then its president has been a Bukele target on Twitter.
The think tank known as the Salvadoran Foundation for Social and Economic Development, or Fusades, also has been singled out by Mr. Bukele for not marching in lockstep with him. Last week Mr. Bukele broadcast over national television a video of tax-fraud allegations he made against Fusades during a private meeting with members of the diplomatic community.
Fusades denies the allegations, but justice may be hard to come by with an increasingly politicized judicial system. Meanwhile any investigations of corruption that the fired attorney general—whose term was up in six months—was working on are likely to be dropped.
Under Mr. Bukele El Salvador may be the next Latin domino to fall to authoritarianism. Do court-packing Democrats have the credibility to stop it?
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