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A Disgraceful Nomination


September 25, 2003
Copyright © 2003 CARIBBEAN BUSINESS. All Rights Reserved.

Gov. Sila Calderon has made a good number of terrible appointments during her two-and-a-half years in office. The nomination of Secretary of State Ferdinand Mercado as chief justice of the Puerto Rico Supreme Court is by far the worst.

Perhaps we have become so accustomed to her mediocre appointments that this one came as no surprise. Almost from the beginning of her term, the turnstiles of Gov. Calderon’s agency heads haven’t stopped turning. Three superintendents of police, three Tourism Co. chiefs, three heads of Pridco, two secretaries of Economic Development & Commerce, two Ports Authority directors, two Economic Development Bank presidents…and scores of others have played musical chairs. Many of the men and women the governor has appointed to her cabinet simply weren’t fit to fill those important positions. Others, admittedly, grew increasingly disappointed in an administration that had no sense of purpose or direction, prompting them to leave in frustration.

All of us, not just the governor and her administration, have had to pay the price for her ill-advised appointments. The instability of an ever-changing administration has precluded the fruition of any meaningful economic development initiative and has cost Puerto Rico countless economic development opportunities.

But in the case of her most recent and fateful nomination, the stakes are higher. Mercado’s appointment to Puerto Rico’s highest court is for life–until the age of mandatory retirement. Unlike the governor’s other appointments, if Mercado gets confirmed, neither she nor anyone else will be able to dismiss him if he’s not cut out for the job.

Mercado’s appointment has stirred a phenomenal controversy and a groundswell of opposition, even among the top leadership of the Popular Democratic Party, including gubernatorial candidate and party President Anibal Acevedo Vila and former Presidents Victoria Muñoz Mendoza, Miguel Hernandez Agosto, Hector Luis Acevedo, and Rafael Hernandez Colon. Because he is a former governor with more than a couple of appointments to the Supreme Court under his belt, Hernandez Colon’s opinion, in particular, should be accorded considerable weight in this matter.

The political opposition from both the New Progressive Party and Puerto Rican Independence Party; independents; academics; and many others have also expressed their rejection. Even retiring Chief Justice Andreu Garcia, although circumspectly, has let his opposition be known.

The governor knew Mercado’s appointment would be almost unanimously rejected by most sectors in Puerto Rico. He is just not qualified for such an important position. Still she went ahead with it, thus making a mockery of the self-proclaimed style of "dialogue and consensus" she has so often parroted as a trademark of her administration.

The tidal wave of opposition to Mercado’s appointment as chief justice has focused on the fact that Associate Justice Federico Hernandez Denton is infinitely more qualified for the job. There’s great danger in that line of argument. It leaves the door open–should the governor be forced to withdraw the nomination or should the Senate live up to its historic responsibility to shoot it down–for another appointment, possibly Hernandez Denton, to the chief justice post and for Mercado’s renomination as associate justice. As such, Mercado’s appointment to the bench might become by then more palatable to public opinion, but it would be equally disastrous for the court.

There are many reasons Mercado is ill fit to occupy any chair on Puerto Rico’s highest court. Many of them have been reported and commented upon almost endlessly during the past week. His political activism, his lack of judicial temperament, his lack of legal scholarship, his intolerance of points of view different from his own….The list is long. To us, the most conclusive evidence that Mercado is ill fit to any post in the Supreme Court is found in his record as secretary of state. Mercado has demonstrated that his views on Puerto Rico’s constitution–in particular, the nature of the commonwealth’s relationship with the rest of the U.S.–is contrary to both the legal facts and the beliefs and aspirations of the vast majority of people in Puerto Rico.

Mercado belongs to that cadre of politicians who have dominated the Calderon administration and whose views on Puerto Rico’s relationship with the U.S. don’t represent the mainstream of the Popular Democratic Party. His rhetoric is full of references to Puerto Rico as a nation separate and distinct from the U.S.

His actions are worse. He has led this administration’s attempt to carve out an international identity for Puerto Rico separate and distinct from the U.S. These attempts have earned him and the administration a very public and very embarrassing reprimand from U.S. Secretary of State Colin Powell. Mercado has responded that his actions and policies are rooted in Puerto Rico’s constitution and in the juridical nature of the island’s relationship with "the North American nation."

Mercado would have us believe that Colin Powell doesn’t know what he’s talking about. In our view, it is Mercado’s interpretation of Puerto Rico’s constitution and federal relations that is out of synch with Puerto Rico and with U.S. constitutional doctrine and jurisprudence.

More important, his views are out of synch with the beliefs and aspirations of 95% of the people of Puerto Rico. The notion that he may sit for 20 years on Puerto Rico’s highest court, whether as chief or associate justice, should send shivers down the spine of any Puerto Rican who values our permanent relationship with the U.S.

It is true that any nomination to the Supreme Court is strictly within the governor’s constitutional prerogatives, even if her choice is a disgrace. But it is the Senate’s constitutional prerogative to reject such a nomination. It should.

This Caribbean Business article appears courtesy of Casiano Communications.
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