The new political course that will begin after the summer break will place the Constitutional Court again in the center of the political struggle. Four of its magistrates, including its president, the progressive Cándido Conde-Pumpido, will reach the end of their mandate next December. Its replacement depends on the Senate, where the Popular Party has an absolute but insufficient majority to make those designations by itself: it lacks 15 votes.
It is a scenario that opens new questions about the incentives of the party of Alberto Núñez Feijóo to agree on a renewal that, in principle, would not serve to alter the progressive majority of seven votes to five that has inclined the balance in very relevant laws and of enormous symbolic burden for the government as the amnesty. In addition to Conde-Pumpido, the outgoing magistrates are the progressive María Luisa Balaguer and the conservatives Ricardo Enriquez and José María Macías. The latter, one of the struts of the judicial right, accessed the position only one year ago and has the option of being re -elected.
The renewal requires the support of three fifth (160 votes) of the upper house, which this week received the official communication that begins the process to designate the new magistrates. So far, it has been usual for PP and PSOE to distribute the four positions and each formation proposed two names. However, it is a hypothetical negotiation that appears plagued with unknowns given the time of enormous tension, with the socialists mired in the wear of the corruption of the 'Cerdán Case' and the PP displaying a strategy of disqualification of the Constitutional, which he has accused of being “a political court at the service of the government”.
The Deputy Secretary of Education and Equality of the Popular Party, Jaime de los Santos, said last Thursday that his party wants the Constitutional to “recover the path of respect for the institutions” and “justice.” He also claimed the Minister of the Presidency, Justice and Relations with the Cortes, Félix Bolaños, to take this issue “seriously” and “stop manipulating it all the time.” The PP has 145 senators.
In private, however, in the PP they recognize that training can have few incentives to address a renewal with the PSOE. On the one hand, given the negative impact that an agreement with the Socialists may have to set a dates on which new revelations about the corruption plot that nest in the Ministry of Transportation in the stage of José Luis Ábalos and the cases that affect the woman and brother of Pedro Sánchez are expected.
And, on the other, given the possibility of an electoral advance that could improve the expectations of the party and approach that majority of three fifths of the Senate, either alone or by the hand of usual partners such as Vox or UPN. That would allow him to name four magistrates of conservative sensitivity, which would turn the current favorable left distribution.
However, the renewal blockade would imply that, except for resignation, the four magistrates would continue in their positions with the extended mandate. That would mean, consequently, to extend the mandate of Conde-Pumpido, who was a State Attorney General during the presidency of José Luis Rodríguez Zapatero and to which the Núñez Feijóo party has accused of “correct” sentences of the Supreme Court and to be “the orders” of the Moncloa.
But the reality is that the current arithmetic makes an agreement practically impossible that does not involve involving the socialists, who have 91 seats in the Senate. To avoid a hypothetical agreement with the formation of Pedro Sánchez, the PP would have to add to the equation to antagonistic options such as Vox and the Basque or Catalan independentists, which seems highly unlikely. It would not be, in any case, the first time that the PP blocks the renewal of the constitutional. He already did it during the mandate of Zapatero, when the organ discussed the sentence on the Statute of Catalonia that ended up lighting the fuse that resulted in the procés.
Nor was the last renewal of the Court of Guarantees that took place in 2022. In that case, the relay corresponded to the General Council of the Judiciary (two magistrates) and the Government (two others), which meant recovering the progressive majority in court a decade later. For three months, a group of conservative members of the judges' governing body made the agreement impossible and delayed compliance with the law at a time when it benefited the progressives.
Finally, the progressive sector of the CGPJ decided to grant a pyrrhic victory to the conservatives: let them impose on the two magistrates in exchange for the court to have a majority of magistrates of that sensitivity. It was then that the conservative César Tolosa and the progressive María Luisa Segoviano, Juan Carlos Campo and Laura Díez accessed the court, which allowed the political majorities of Parliament to have their reflection in the court.
However, the most scandalous blockade to which the PP has submitted to a constitutional body took place between 2018 and 2022, when with increasing and changing excuses he refused to agree on a renewal that made him lose his majority in the CGPJ, the main institution of the third state power and the one that designates the most relevant judges of the country. There were several attempts and in some the renovation was close, but Núñez Feijóo yielded to the pressure of very influential media terminals in the party and internal voices of the formation, very critical with any viso of approach to Pedro Sánchez.
The agreement was forged in June 2024. The PSOE, despite being in the Government, accepted that the body was totally divided by half, with ten vowels designated at the proposal of the Socialists and add and another ten chosen at the initiative of the PP. The pact also contemplated that, for the first time, it was the vowels themselves who chose the presidency of the organ.
After the conservative block again blocked the designation of the candidates proposed by the block on the left, the organ ended up designating Isabel Perelló, to which a progressive sensitivity was attributed but that has maintained a neutral position in the most controversial issues. After six years of blocking, the organ has recovered institutional normality, although the weakness of the progressive block has also been revealed as reflected in the fact that almost 40% of the places awarded in the Supreme Court and the territorial courts have been for conservative judges.
The Constitutional, a possible counterweight
Despite these precedents, in the Executive they recognize that the partial renewal of the Constitutional is an issue that has not yet begun to be addressed. However, given the current political situation, it is the PSOE who may be interested in a renewal that guarantees to maintain the current correlation of organ forces, with seven progressive magistrates and five conservatives. Some voices suggest that, in the event that the PP managed to access Moncloa, the Constitutional would have the ability to act as a counterweight to the possible regressive policies of a PP conditioned by an extreme right that continues to rise in the surveys.
The mandate of the 12 constitutional magistrates is lengthened for nine years and is renewed by thirds every three years. After the third of the Senate, the renewal of the four magistrates chosen by Congress is scheduled in 2028. That choice also requires a majority of three fifths, so there is usually a cast with two members of progressive sensitivity and two conservatives. Thus, the conformation in favor of the left would be guaranteed, in principle, until 2031, which is when it would be the turn of the government and the CGPJ. The usual thing is that the change of cycle in the Constitutional occurs with the partial renewal of the two magistrates chosen by the Executive and the others that decides the governing body of the judges.
In recent years, the progressive majority of the Constitutional have armored rights such as abortion or euthanasia and has supported other relevant norms for the coalition government such as the Housing Law or the Rider Law. In addition, one of its last decisions has been to endorse Amnesty's law when considering that it is compatible with the Constitution, that its parliamentary process was correct and that it is not a general pardon.
The organ still has some matters of great weight, such as support filed by the former Catalan president Carles Puigdemont against the decision of the Supreme Court not to amnesty the crime of embezzlement of public funds, which has left him out of the amnesty. The Guarantees Body will also have to resolve issues such as the elimination of Catalan as a requirement to work in the public health of Balears or the maintenance of repealed memory laws in several autonomies governed by the PP. They are part of the issues that the magistrates will address while, of doors outside, everything indicates that the court will remain immersed in the political struggle.
