October 3, 2003
Copyright © 2003 PUERTO RICO HERALD. All Rights Reserved.
Sila Calderon and the Supreme Court: Her Legacy?
In a shocking reversal yesterday afternoon, Governor Sila Calderon notified the President of the Puerto Rico Senate, Antonio Faz Alzamora, that she was withdrawing the name of her Popular Democratic Party (PDP) Secretary of State, Ferdinand Mercado, from consideration as chief justice of the Supreme Court. Instead, she proposed him as an Associate Justice, saying that she would make a further nomination for the court leadership from within the existing ranks of Associate Justices.
Several hours later, New Progressive Party (NPP) Senate Minority Leader Kenneth McClintock and Puerto Rican Independence Party (PIP) Sen. Fernando Martín turned shock to paralysis by arguing that the move was unconstitutional since the governor first had to name a chief justice from the court itself in order to create an associate justice vacancy. Martín ridiculed the debacle telling reporters "Even a first-year law student could look at the Constitution and see that there was no vacancy. How is it possible that the Forteleza and the (PDP) party caucus missed this point?"
This stalemate left Governor Calderon with a "Hobson’s choice." At first she decided to resubmit the Mercado nomination as chief justice, but a hastily called PDP caucus last night showed that Mr. Mercado did not have the fifteen Senate votes necessary to confirm him. If she insisted on the Mercado nomination as chief justice, and it were to loose in a Senate floor fight, she would likely damage him politically in any subsequent nomination process. On the other hand, the constitutional restriction meant that the Governor was not likely to see her first choice sitting in the chair of the Chief Justice of the Supreme Court. As this Herald edition goes to the web, the imbroglio continues.
The Senate confirmation hearings to decide Mercado’s suitability to become the new chief justice, on-going since Monday, had brought leading members of the usually warring political parties together in their opposition to the nomination. Seven former Supreme Court justices opposed his selection, as did former party presidents across the spectrum of Puerto Rican politics. Six PDP Senators had written to Governor Calderon saying that they would oppose the nomination.
"Lame duck" PDP Governor Sila Calderon named her top Cabinet member to the lifetime post by passing over existing Supreme Court justices and others considered more experienced and better suited for its leadership. Before Mercado’s first Senate appearance, the Calderon administration launched TV spots extolling the nominee, a move seen as an attempt to bolster him publicly and weaken PDP opposition to him in the Senate. New Progressive Party (NPP) Senators were solidly against the nomination. The Governor also made a speech praising Mercado and suggesting that opposition to his nomination was "purely political."
Surprisingly, the most vociferous "nay-sayer" to Mercado’s nomination was PDP Resident Commissioner Anibal Acevedo Vilá, the party’s lone candidate for Governor in 2004 and the recently-elected President of the party. Acevedo’s opposition to Mercado was based on the nominee’s controversial reputation and his lack of a "judicial temperament." He took exception to Calderon’s speech in a press release, stating that she had no right to question the motivations of those opposed to the choice and asserting his obligation to contest a nomination he considered wrong for the island’s high court.
Mouths among Puerto Rico political pundits were dropping in amazement at this duel between the top two PDP office holders and a PDP Senate delegation split over the issue. A fissure at the very highest levels of the PDP could have produced political tremors in the up-coming campaigns. Acevedo Vilá had advised PDP senators that a vote for Mercado would have a political cost during the primary election in November and the general election next year.
That Governor Calderon would risk insisting on such a controversial candidate in the last year of her incumbency gives credence to those that ague that Mercado’s selection is a "political pay-off." Mr. Mercado, a relatively unknown party official in 2000, became one of the Governor’s most intimate advisors at the Forteleza. It was he who crafted and shared in the Commonwealth’s "foreign policy" adventures, recently excoriated by the U.S. Department of State as being inappropriate for a territorial government.
Arguably, Governor Sila Calderon’s nominations for members of the Puerto Rico Supreme Court are the most important decisions that she will make during her incumbency. A lifetime appointment to the High Court, and the leadership position at that, is in many ways as important and enduring in its influence on the island’s political status as any executive or legislative office could be. Political players in Puerto Rico are aware that there is much at stake here and are playing all of their chips in defense of or opposition to the Governor’s nominations.
As this week’s edition of the Herald closed, still pending is word from the Forteleza as to what course Sila Calderon will take -- insist on a Senate floor vote on Ferdinand Mercado as chief justice or submit a name from among the sitting justices for the post. Speculation has it that Justice Francisco Rebollo has her nod should she take the latter course.
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