By law, Francisco Pérez de los Cobos should by now be the ex-president of the Spanish Constitutional Court (TC). His mandate, along with those of three of the other eleven judges expired on 31 December. However, in the middle of a legal offensive against the Catalan independence process, both PP (People’s Party, centre-right) and PSOE (Spanish Socialist Workers’ Party, centre-left), who control the voting process for TC roles, have decided, for the moment, to delay the new term. As well as Pérez de los Cobos, who was a PP activist from 2008 to 2011, judge Adela Asúa, nominated by PSOE, has reached the end of her time. They also need to find a replacement for the late Luis Ortega, another PSOE nominee who passed away in 2015, and decide whether Ricardo Enríquez, a member of PP, will continue on the court having substituted for the late Francisco Hernando in 2014.
The Senate, who nominate members to the court in rotation with the Congress, the Spanish government and the General Council of the Judiciary, had given all the autonomous communities the opportunity to propose two candidates. This offer expired on 19 December. Only Navarre, governed by Geroa Bai took up this offer. The communities controlled by PP and PSOE ignored it, while the Parliament of Catalonia refused to present any candidate to a court as the governing parties believe it to be under the orders of prime minister Rajoy.
The offer has been extended until 13 January. However, January is a holiday for the Spanish courts, and any candidate has to be evaluated by a legal commission, as well as be ratified by three fifths of the Senate. These complications mean it will fall back to at least the end of February. First, PP and PSOE need to reach an agreement. PP don’t have enough votes in the Senate, even with their absolute majority, to be able to nominate whoever they wish. They need 160 votes from 266 senators while they have only 146 seats. They can’t reach 160 with the three from Ciudadanos, nor with the three senators from UPN (Navarrese People’s Union), Forum Asturias and Coalición Canaria, nor even with all six from the PNB (Basque Nationalist Party). An agreement with PSOE, therefore, is essential and, as Ciudadanos have already advanced, they hope for “political payments” on other topics, like the State’s budgets for 2017.
The Catalan precedent
With no consensus on the horizon, the PP is happy to let the current body, with its clear conservative majority of eight out of 11 judges, carry on for as long as possible. Delays in the renewal of a body as politicised as the Constitutional Court aren’t new. PP and PSOE have always fought to try to have a majority on the Court. And, just as now, the firewall against Catalonia was the main issue of the last delay. The 2010 polemical verdict against the revised Statute of Autonomy of Catalonia arrived after 3 years of blocking the renewal of the judges, in which it proved another battlefield between PP and PSOE to maintain control of the court.
But the block continued for 3 years after the verdict, until the PP, then with an absolute majority, managed to take control of the TC with Pérez de los Cobos at its head. Now, in the games for the renewal of the presidency, they are back in the same situation. One of the names they’re talking about the loudest is Andrés Ollero Tassara, a member of parliament for PP from 1986 to 2003. The vice-presidency could go to Encarnación Roca Trías who, despite having been nominated by CiU, a Catalan party, has become one of the leading voices against the independence process and in favour of the return of bull-fighting to Catalonia. In fact, she will be the only woman on the court if no other is named. The PP’s calculations work because they can choose at least two of the four judges up for grabs. Of the remaining two, one is for PSOE to decide, and the other is a consensus choice, to be proposed by, for example, PNB, in return for a hypothetical guarantee over the 2017 budgets.
 Justices are elected to the TC for 9-year terms; a president is elected from among them for a 3-year term.
 A centre-left, pro-Basque independence coalition.