Calderón Against A Consensus

by John Marino

October 3, 2003
Copyright © 2003 THE PUERTO RICO HERALD. All Rights Reserved.

. Gov. Calderón cut short her honeymoon to return to Puerto Rico and "use all my faculties as governor" to push for the Senate confirmation of Supreme Court Chief Justice-designate Ferdinand Mercado.

That, it turns out, includes burning up the telephone lines with Popular Democratic Party senators and inviting them to private meetings at La Fortaleza, not to mention spending nearly $100,000 of public money to plead her case why naming her secretary of state to the highest judicial seat in the land is the right thing for Puerto Rico.

By the end of the week, faced with an impending defeat of her nominee, Calderón attempted to pull Mercado's nomination to the chief justice post and resubmit it as Supreme Court associate justice, arguing that the current interim chief justice could continue operating in his capacity.

But minority lawmakers, with pro-statehood Senate Minority Leader Kenneth McClintock and Puerto Rican Independence Party Sen. Fernando Martín leading the charge, argued that the move was unconstitutional because the governor first had to name a chief justice in order to create an associate justice vacancy. That view was apparently forwarded to the administration from powerful voices in the judicial branch of government.

The move was denounced as a "constitutional comedy of errors" and a "day that would live in legislative infamy." But at the end of it, nothing much had changed. A vote or two would decide Mercado's nomination, but there was doubt that PDP leaders would bring it down to such a showdown. It might be simply a matter of naming a chief justice from sitting members, and then resubmitting the nominee to fill the associate justice vacancy that it would create. Calderón, it seems, does not want to risk a floor vote.

On Tuesday night, the eve of his Senate appearance, as the governor spoke on paid TV spots, Mercado's nomination hung in the balance, depending on a deeply divided PDP Senate delegation, which needed six votes to kill the nomination, and had a solid five, and another five solidly undecided.

But the momentum, as star witness after star witness testified against the nomination during the first two days of hearings, was clearly against him. He performed well in his testimony Wednesday, but it was immediately thought not to be enough to have stemmed the tide against him.

And the governor's message, a spirited defense of Mercado the man, also fell short of explaining why out of all the judges in Puerto Rico, the youthful Mercado, who has vowed to spend 24 years in the post, deserves the job.

The governor claimed the opposition was political. But it was really her nomination that was. Calderón is on the opposing side of that infamous "consensus" she passionately called for in governing during the 2000 gubernatorial campaign.

It's tri-partisan opposition, and it's her own 2000 running mate PDP President Aníbal Acevedo Vilá leading the charge. In one of his finest moments as a politician, the resident commissioner and 2004 gubernatorial candidate listed the five reasons to vote against Mercado:

1. He lacks public support and engenders strong opposition in most sectors of civil society.

2. His nomination is seen as a "political prize."

3. The nomination goes against party pledges to grant judicial autonomy and depoliticize the process of nominating judges.

4. Early in the process, by attacking opponents, Mercado showed he lacked the appropriate judicial temperament.

5. He'll never be a leader because all the judges on the court are smarter than Mercado.

Arm-twisting is taking place on both sides. Press reports allege the administration is threatening to sic Justice Department investigators on Senate Nominations Committee Chairman Bruno Ramos and Sen. Modesto Agosto Alicea for potential pork barrel funding irregularities if they vote against Mercado. Other reports allege the threat of cutting the pork barrel purse strings is another option under consideration, a powerful motivating factor for district lawmakers facing reelection battles during the next two years.

Acevedo Vilá, who appeared with PDP Vice President José Aponte and the five opponents of Mercado before his testimony, has suggested a vote for Mercado will have a political cost during the primary election in November and the general election next year.

The governor said that politics had no role in her decision and would have no political backlash, but if anything is clear at this point, politics is very much behind and has been very much affected by her nomination.

Calderón's address recalls another one she made in 1999, to confront another threat for party power, the primary challenge of the son of Rafael Hernández Colón to her handpicked running mate and candidate for resident commissioner. But in the end, there are more differences than similarities in the two speeches.

Back in ‘99, Calderón was using her own funds instead of those of the central government, and she was defending Acevedo Vilá, who today is squarely in the Hernández Colón camp in opposing the nomination. Most importantly, back then, she was the gubernatorial candidate and PDP president; today Acevedo Vilá is.

There are many reasons why Calderón could have cut short her honeymoon, but this was not one of them.

Crime is up, the water utility is in trouble and important decisions are being made in Washington. The governor deserves credit for bringing some sanity to government finances, but she also has contributed her fair share to government bureaucracy rather than setting it on a course to streamlining. Declaring an Administrative Reform would have been a good reason, for both the shortened European holiday and the publicly funded address.

But defending Mercado, one of the few political confidantes from the campaign who still plays a significant role in the administration, is not.

Calderón, more than anybody, has turned what should have been a non-event into a referendum on her administration. There were clear signs, including front-page news stories, that there would be widespread opposition to Mercado before she named him. In moving forward with the nomination anyway, she has pushed herself into a no-win situation.

Even if she gets the Senate votes, it's clear she would not have won at the polls.

If Mercado gets confirmed, a large sector of public opinion will harden against the administration, especially if the Senate PDP caucus attempts to force its members to vote according to the majority party line in order to do so, which is likely necessary to win confirmation.

If Mercado is rejected, it's more evidence of Calderón's lame-duck status, which, it should be noted, is entirely self-inflicted.

As more likely, Calderón makes a compromise move to get Mercado on the court as associate justice, this whole episode has still been an unnecessary controversy as the administration heads into its final year-long stretch.

John Marino, City Editor of The San Juan Star, writes the weekly Puerto Rico Report column for the Puerto Rico Herald. He can be reached directly at: Marino@coqui.net

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