The resignation of three judges from the Constitutional Court (TC) is a new and worrying development in the history of Spanish democracy, though hardly a surprising one. In this and the previous legislature, the TC has been under unprecedented pressure, shaken by the fierce battle surrounding the Catalan autonomy statute.
These years have seen attempts to break its internal balance with juridically far-fetched objections to certain judges; while the Popular Party (PP) has not hesitated to block new appointments with the thinly veiled aim of keeping its quota of influence in the institution. And lately the ruling that legalized the Basque separatist coalition Bildu has caused a disturbing wave of discredit for the Court on the part of political sectors opposed to the move, while the six judges who voted for the legalization are being gravely insulted and even termed criminals by the most reactionary right.
The three have resigned to prevent a repetition, in their case, of the anomalous and prolonged extension of functions suffered by their colleagues of the Senate-appointed quota, finally relieved in December 2010. Since last November (the normal replacement date), the Socialists (PSOE) and the PP have been at odds over Judge Enrique López, whom the PP wishes to place on the TC at all costs, though the Senate has rejected him and his evident lack of the qualifications required for such a post.
It remains to be seen whether the en-bloc resignation of the three judges will spur the political parties to attend to their institutional duties. The resignation has not yet been accepted by the TC's presiding judge, Pascual Sala, who thus prevents the Court from slipping to the brink of collapse, with a quorum of eight judges, the minimum with which it can function. But as long as PSOE and PP do not announce that Congress, whose job it is to designate substitutes for the outgoing judges, will proceed to their appointment promptly, Sala's moral authority for refusing to accept their resignation will be weak. The three judges have good reason for indignation, and for showing their malaise by renouncing a post that they have been exercising in a caretaker capacity for many months, while the political parties show no sign of resolving the crisis.
One letter of resignation describes the situation well: while not questioning the legitimacy of the Court nor that of its decisions during this period, the prolonged and excessive extension of caretaker-capacity situations, while the parties fail to act and the affected judges are unable to resign, produces the sensation of "forming part of a Court held hostage."
Amid the state of impasse certain PP voices are blaming the government. Is their party not more to blame? The PP has for years acted opportunistically and unfairly, blocking new appointments in order to maintain the conservative majority in the TC that resulted from the years of a clear PP majority in Congress; putting off new appointments until they are again in power.