–Emiliano Vitaliani, Fox Fellow, University of São Paulo; LL.M., Yale Law School
The Inter-American Court of Human Rights (ICtHR) is currently considering the impeachment of Argentine Supreme Court Justice Eduardo Moliné O’Connor in 2003. The case is unlikely to surprise observers of the Court’s jurisprudence. Over the last decades, the ICtHR has developed a robust doctrine on judicial independence and impeachment that strongly favors Moliné O’Connor’s position. Yet the case also exposes deeper tensions within the Court’s understanding of judicial independence, particularly regarding apex courts facing broader crises of institutional legitimacy.
Eduardo Moliné O’Connor was appointed as a justice in 1990. After Carlos Menem was elected president, he packed the Court, increasing the number of justices from five to nine, allowing him to appoint a significant portion of the Court. Moreover, as Justices Bacque and Caballero resigned in protest against the court-packing plan, Menem was able to appoint two additional justices beyond the vacancies created by the expansion of the Court. Over time, these appointees were known as the ‘automatic majority’, as they were widely understood to rule automatically in favor of the Menem administration’s positions. During the 1990s, the economic situation deteriorated and corruption scandals became frequent, leading to the 2001 crisis, marked by the slogan “they all must go”
In 2003, Kirchner was elected president and called for the impeachment of the justices of the so-called ‘automatic majority’. Three justices resigned and two, including Moliné O’Connor, were impeached under the argument that they had abdicated their judicial function by failing to review an arbitral decision. The impeachment thus took place in the context of a broader crisis concerning the Court’s credibility and legitimacy, providing a useful opportunity to reflect on the relationship between judicial independence and legitimacy.
The future of the case against Argentina
The ICtHR is not dealing with impeachments for the first time. On the contrary, it has consistently maintained a doctrine on impeachments. Since the first case in which it had to deal with the impeachment of justices in Peru, the ICtHR has held that judicial guarantees (art. 8 of the Convention) are applicable to impeachment proceedings because of their adjudicative character and effects on human rights.
Building on this premise, the ICtHR argues that impeachment proceedings should be independent and impartial and guarantee the person under trial the right to defense, just as in a regular judicial procedure. Moreover, in Caso del Tribunal Constitucional the Court also highlighted that independence should be specially guaranteed regarding justices of apex courts due to the nature of the problems under its jurisdiction (par. 75). In Camba Campos, the Court held that justices can only be impeached for “serious misconduct or incompetence”, and this was sustained in Ávalos Rios. In the same case, the Court said that courts are “guarantors of human rights” (par. 191) and, therefore, impeachment should be “objective and impartial” (par. 88) as a prerequisite for the rule of law. These principles were also sustained in other rulings of the ICtHR such as Reverón Trujillo and Quintana Coello, which results in a well-established line of case law on judicial impeachments. In sum, the ICtHR has repeatedly found that most of the guarantees required in an ordinary judicial process should also be present in impeachments.
In this context, Argentina will probably be found responsible. First, the Congress’ reason for impeaching Moliné O’Connor was that it found unacceptable his decision in Meller, a case ruled by the Supreme Court in 2002. Judicial decisions, however, are explicitly excluded as valid reasons for impeachment in the ICtHR’s case law. Second, the then first lady, Cristina Fernández de Kirchner, was the President of the Senate’s Impeachment Commission at this time, which has been read as a violation of the Senate’s necessary impartiality as the judging institution.
Is there any room for politics in impeachment?
In Spanish, impeachment translates as “political trials” (juicios políticos), highlighting the simultaneous judicial and political nature of impeachment. Interestingly, Justice Hernández López of the ICtHR noted during the hearing in the Inter-American system that, if criminal guarantees were transposed to impeachment proceedings, little room would remain for politics. In what follows, I will argue that the ICtHR’s case law on the impeachment of judges relies on an implausible reading of the law/politics distinction in constitutional law.
The Inter-American case law on judicial impeachments leaves little or no space for politics in constitutional law. When applying the rules of ordinary trials to impeachments, the Court blocks the introduction of political considerations into impeachment proceedings. The Court requires political actors to behave impartially and independently, but representatives can hardly be independent of their parties and voters, as they are subjected to party discipline and electoral accountability. Thus, representatives can hardly be independent from politics during an impeachment process, whether we have a party-centered or a citizens-centered understanding of politics.
Moreover, the impossibility of initiating impeachment proceedings on the basis of apex courts’ constitutional interpretations seems to presuppose that those interpretations are indisputable rather than objects of social and political disagreement. This leads to a juriscentric conception of constitutional interpretation that traces a sharp distinction between law and politics. However, constitutional law concerns foundational disagreements about rights, equality, property, and the organization of the political community itself. Apex courts, therefore, do not merely apply constitutional law and guarantee rights, but exercise constitutional authority over deeply contested political questions. Of course, if we believe justices are “guarantors of human rights” as the Court does, it would not make sense to evaluate their constitutional performance. However, whether they are actually guarantors of constitutional rights is exactly what is disputed in impeachments, so it cannot serve as a premise for their evaluation.
When we move to the underlying understanding of law in the ICtHR, a deeper argument emerges. As noted above, the Court understands constitutional adjudication as an objective task that, when performed by courts, guarantees human rights. Constitutional law, however, concerns our basic understandings as political communities, which are unavoidably contested and therefore political. The apex court judges decide highly controversial issues, including abortion, property, equality, and the extent of social rights, such as housing and education. These issues are deeply disputed in the political arena and therefore lie at the core of the disagreements that characterize politics. Courts sometimes recognize rights not previously acknowledged in constitutional doctrine, as the U.S. Supreme Court did with the right to privacy in Casey. Yet the Court argues that constitutional courts should be even more protected from politics, which it views as less political than ordinary law. Under the Inter-American Court’s reading, issues such as those mentioned above should be subjected to less political control even when they concern our most fundamental constitutional disagreements.
The understanding of justices as non-political actors also contradicts current constitutional practices. In many jurisdictions, justices are selected through openly political procedures with some technical constraints, such as presidential appointment and Senate confirmation. Actually, Moline O’Connor himself benefited not only from political appointment and confirmation, but from the political decision of packing the court, which opened new vacancies. This contrasts with the selection of lower judges, who are sometimes selected through more technical procedures. Many constitutional systems (Argentina and Brazil, for example) seem to recognize that there is something inherently political about constitutional adjudication and therefore accept political considerations when deciding who will exercise ultimate constitutional authority. In this context, the ICtHR approach to judicial impeachment has not only theoretical problems, but also appears to be at odds with Latin American constitutional practices.
Moreover, courts do not control “either the sword or the purse,” as Hamilton said. Therefore, their influence depends on other actors accepting and following their opinions. In contexts where citizens and representatives deeply discredit the decisions of high courts, courts become less capable of persuading relevant actors and, consequently, of performing their constitutional function. This is what happened in Argentina, where society demanded profound political and institutional change, but one institution that had become a symbol of the old system was therefore profoundly discredited. In contexts like this, the sociological legitimacy of high courts is undermined, leaving them unable to persuade their audiences of the validity of their constitutional interpretations. Impeachment, then, appears as a possible response to situations in which courts lack sufficient public support to effectively perform their constitutional role.
Saying that politics are acceptable in impeachment does not mean, however, that independence is not a relevant value. It is. Justices should not be subjected to the will of ordinary politics, and they have a valuable voice in constitutional interpretation that should be protected. This voice, moreover, could not exist if they were subjected to constant political pressure.
However, claiming that justices require some degree of independence is not the same as saying they should be completely insulated from politics, which would also be implausible given the partially political nature of their task. We therefore need to think about impeachment in a way that both guarantees some level of judicial independence while preventing constitutional adjudication from becoming fully subordinated to ordinary partisan politics. When we think about this need, procedures appear as a plausible institutional tool.
During the hearings in the Moliné O’Connor case, it was argued that the alternative to a strict reading of the grounds for impeachment was pure presidential will, as many other attempts to remove justices demonstrate. However, under an approach that both values judicial independence and recognizes the political nature of constitutional interpretation, it is possible to think that what guarantees independence is the need for special majorities in chambers that respond to different kinds of representation and the possibility for justices to state their case publicly. The difficulty of reaching these supermajorities in both chambers makes impeachment possible only when there is broad cross-partisan agreement showing a general rejection of the justices. Procedures, therefore, operate as safeguards against the arbitrary will of one party, requiring broader agreement on the need to remove a justice. The Moliné O’Connor case then reveals the tensions that emerge when doctrines designed to insulate courts from politics confront broad, cross-partisan demands for judicial accountability.
Suggested citation: Emiliano Vitaliani, Is There Any Room for Politics in Judicial Impeachment? The Moliné O’Connor Case in the Inter-American System of Human Rights, Int’l J. Const. L. Blog, June 12, 2026, at: http://www.iconnectblog.com/is-there-any-room-for-politics-in-judicial-impeachment-the-moline-oconnor-case-in-the-inter-american-system-of-human-rights/