The Plenary of the TC has the key to stop the disembarkation alone because it is the one who must give the 'placet' to the Moncloa applicants
The Council of Ministers will approve this Tuesday the appointments of the former Minister of Justice Juan Carlos Campo and the former Director General of the Ministry of the Presidency Laura Díez as new magistrates of the Constitutional Court (TC), according to El País.
The Government had expressed on numerous occasions its intention to appoint the two candidates to the TC that corresponds to it by quota without waiting for the General Council of the Judiciary (CGPJ) to appoint the other two that complete the third of four magistrates pending renewal .
In these months, the Executive has fluctuated from positions that, at first, contemplated appointing its two candidates for the TC, although the CGPJ could not do the same because then the Organic Law of the Judiciary (LOPJ) prevented it, to others in which he advocated giving the governing body of judges a reasonable time so that, once the legal capacity to do so had been recovered, it nominated his pair for the TC.
Now that Moncloa has chosen to advance without the CGPJ, the TC Plenary must clear up the mystery, since it is the one who must give the 'placet' to those selected. Initially, sources from the court of guarantees saw it difficult for the two aspirants for the Executive branch to overcome the plenary filter without the two from the CGPJ, because -they explained- the Council could not fulfill its constitutional function due to the reform of the LOPJ operated in March 2021 that prohibits the body from making discretionary appointments in the judicial leadership while it has expired, a situation in which it has been going for almost four years.
However, the same sources now emphasize that the scenario changed last July, when PSOE and Unidas Podemos promoted the approval of a second reform so that the Council would recover its power to fill vacancies in the high courts, although only for the Constitutional one.
Faced with this thesis, other sources consulted by Europa Press maintain that the Constitution does not allow any other interpretation than that the renewal be made with the full third (the 4 magistrates), because the opposite would mean 'de facto' doing it by sixths (2 magistrates).
Thus, the key to the plenary session will be held by the current conservative majority of the TC, from 6 to 5, since the position of magistrate Alfredo Montoya --who must fill the Senate-- remains vacant.
It should be remembered that, if the Government finally decides to appoint on its own, and obtains the approval of the Plenary, the majority of the Constitutional Court will change because González-Trevijano and Narváez, at the time nominated by the Rajoy Executive, would be replaced by the two sent by the Sánchez Cabinet, configuring a progressive majority of 7 to 4, in the absence of the two from the CGPJ.