Marchena versus Bolaños

Judge Marchena was in Barcelona a few days ago. In fact, he barely set foot outside. He went to give a lecture at the Judicial School and returned to Madrid immediately, but not before receiving some insults on the platform at Sants station. The judge who presided over the trial of the independence leaders used to go to the Liceu when he was anonymous, but now he won't be able to present his first book aimed at the general public (he has published technical publications), " Justice Threatened ," in this city. The title was chosen by the publisher, Espasa, although the author not only accepted it, but the phrase appears in the introduction.

But the judge's name takes up more space on the front page. Manuel Marchena has become a media-friendly magistrate , whether he likes it or not, and he has always criticized the fact that judges are turning themselves into controversial political figures, as was the case with Baltasar Garzón. His name came to light with the revelation of a WhatsApp message from PP senator Ignacio Cosidó in which he boasted that the PSOE had smuggled a judge into the Supreme Court's president, who would control the court that would judge the politicians involved in the independence process "through the back door."

"The attorney general cannot be the enthusiastic legal advisor of the ruling party," says Marchena.

Marchena rejected the appointment, and Pedro Sánchez posted on Twitter: "Marchena's resignation demonstrates that he was suitable to preside over the General Council of the Judiciary and the Supreme Court. It enhances his prestige and independence. I understand his decision and appreciate his commitment." It was November 2018. Then came the trial and the verdict in the independence process . Marchena became the bête noire of the independence movement, but also of very conservative sectors who considered him lukewarm. The convictions in the independence process are pending before the European Court of Justice, and the Supreme Court fears that they will be considered disproportionate. In Marchena's court, they believe the amnesty law supports this theory. An insurmountable wall has been built between the high court and the government, framed by the clash between the PP and the PSOE.

The tension between the two blocs has been taking on dramatic overtones. Aznar demanded, "Whoever can do something, let them do it," and Feijóo insists in Congress, "Go away, Mr. Sánchez," while the Prime Minister is convinced that they are trying to corner him through judicial harassment of his wife and brother, or now the leak of José Luis Ábalos's WhatsApp messages containing disparaging comments about other party colleagues. In the Moncloa Palace, they paint a picture of a Sánchez reborn after the five days of April last year, determined to battle those who want to bring him down. The counteroffensive encompasses the judicial system, the power of big business, and the media. The judiciary is led by Minister Félix Bolaños, who is pushing through reforms to reduce the conservatives' influence.

In his book, Marchena expresses his opinion on several controversies, albeit subtly. Simply expressing his preferences regarding the method of electing the Attorney General or the members of the Judiciary just as Bolaños is trying to introduce changes constitutes a declaration of principles. The judge offers opinions that, in themselves, are common sense, but which take on a different meaning when applied to current events, such as this phrase: "The Attorney General of the State cannot be the enthusiastic legal advisor of the party that supports the government team." The current holder of that position, Álvaro García Ortiz, is being investigated for the alleged leak regarding the tax fraud case involving Ayuso's partner and is engaged in a brutal standoff with the Supreme Court . This week, Bolaños presented a bill to have Attorney Generals elected for five years instead of four, as a way of separating them from government mandates.

Marchena speaks out on the public accusations, which Bolaños wants to limit in the face of the abuse of this position by the far right. The judge defends it to combat "the inhibitory temptation" of a Prosecutor's Office dependent on the government. However, although he criticizes the appearance of bias on the part of the Attorney General in his book, he admits that there is no foolproof formula to avoid it: "Experience shows that the impartiality of the Attorney General has a lot to do with his personal character. Spanish society remains entrenched in a magical trust in legislative reforms."

Something similar happens when it comes to the election of the Judicial Council. The PP demands that it be elected by the judges, but Marchena admits that this is no panacea either and blames the politicians' lack of respect for formalities for the deadlock: "A political commitment would suffice to clean up the negotiation process and avoid suspicions about the manipulation of the judges' governing body."

Along the same lines of criticizing politicians for the judiciary's poor image—"the main problem stems from the political class's difficulty in criticizing and assessing judicial decisions," he maintains—Marchena complains about "the delegitimization with which the Supreme Court has been politically criticized, to the point of trying to explain its decisions as an expression of lawfare ." The reference to lawfare was introduced in the document signed by the PSOE and Junts for Sánchez's investiture. Carles Puigdemont demanded its inclusion in the amnesty law, but Bolaños relegated it to the political agreement. Even so, it fell like a bombshell in the court.

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The author defends the judiciary and places the blame on politicians, while the government accuses some judges of contributing to the persecution of the president to bring about his downfall. The paradox is that Marchena has published a book criticizing political parties for contributing to damaging the image of judges, while at the same time this same gesture is interpreted by some as a step by the judge into politics. No doubt more...