University of São Paulo: The instrumentalization of the Federal Supreme Court

DSince taking office, President Jair Bolsonaro said he would take advantage of the first vacancy to be opened in the Supreme Federal Court to appoint a “terribly evangelical” minister. Forgetting that the State is secular, highlighting the fact that Brazilian society is plural and ignoring the institutional functions of a supreme court, this was the expedient he resorted to to say that he would go to great lengths to make it hegemonically conservative.
According to the Constitution, the choice of a minister for the STF is made by the President of the Republic and the chosen name is sent to the Senate to be heard. After the hearing, the Constitution and Justice Commission decides whether the nominee fulfills the requirements of an unblemished reputation and remarkable legal knowledge. If approved, the nomination will be put to a vote in plenary, to be confirmed.

This indication model is similar to that adopted in the United States, whose institutions served as inspiration for the construction of the Brazilian State after the proclamation of the Republic. Since the Constitution of 1891, the model for choosing STF ministers has changed little. As in the two countries, the performance of their supreme courts implies a convergence between positive law and politics, both took care to prevent them from being occupied only by judges. In both countries, the objective is to ensure access to the summit of Justice for respected jurists and consecrated lawyers. It is a way of neutralizing the corporate bias of the judiciary, on the one hand, and of endowing a supreme court with a vision capable of respecting the majority social forces and social minorities.

Although in the United States the mandate of ministers is for life, while in Brazil it expires at 75, the biggest difference between the two models is not formal, but substantive. In the United States, the Supreme Court nominees’ sabbaticals are rigorous and last for days. The nominees must demonstrate not only knowledge of law, jurisprudence and legal doctrines, but also social sensitivity. In Brazil, sabatinas tend to be purely protocol. They last a few hours and – with rare exceptions – senators limit themselves to making banal praise and inquiries, when not previously agreed.

In Brazil, since the advent of the 1891 Constitution, only five nominations have been rejected – all under the Floriano Peixoto government. In the United States, in more than two centuries the Senate has already rejected 12 nominations. And 11 times the White House had to withdraw the names indicated to prevent them from being rejected. There are cases in which the nominees themselves declined the nomination, when they realized they would be rejected, and in which the senators prevented the vote, making endless speeches during the sabbaths. The latter cases deserve to be highlighted. In 1987, Ronald Reagan appointed Douglas Ginsburg, who was rejected after it was known that he smoked marijuana as an adult. And in 2005, George W. Bush appointed a personal advisor, Harriet Miers. Considered unprepared even by government senators,

This shows that the American experience seems to be working. When being appointed, nominees must show legal knowledge and social sensitivity. And history reveals that, regardless of whether they are conservative or progressive, Supreme Court ministers often take into account the impact of their decisions on a complex and plural society and not the interests of the governors who chose them. As several nominees have already been rejected, this shows that, if taken seriously, sabatines can bar nominees without biography and social sensitivity from entering the summit of Justice.

In view of the institutional tensions that Brazil faces, it was to be expected that the Brazilian Senate would be inspired by the American Senate and would become rigorous in the sabbaths. Among other reasons, because the names suggested by the Planalto for the vacancy opened by the retirement of Minister Celso de Mello were conservative, but, for the most part, they lacked notable legal knowledge. Many were bachelors trained in third-level courses, without much legal experience and notorious knowledge.

Guided by Bolsonaro, each new name that appeared in the press classified him as “guarantor” or “consequentialist”, as conservative or progressive. However, Bolsonaro surprised by choosing a little-known federal judge, whose curriculum listed courses he did not take and classified a thesis he wrote as plagiarism. In addition, he joined the judiciary not by competition, but through the corporate route of the fifth constitutional, representing the class of lawyers.

It was a surprise. His nomination made it clear that, after allying with Centrão, Bolsonaro saw that the Senate would not reject a political nomination. He then relegated the theme of values. He abandoned the idea of opting for a conservative. And he preferred to indicate a name that, according to the press, agreed to subject himself to sitting with him on weekends “to take tubaína”. It was thus clear that, instead of a conservative, as he had been announcing since his accession to the Plateau, the president opted for someone who would legally shield him, along with one of the sons who is on trial in the penal field.

The episode revealed a Senate, in addition to being unable to fulfill its institutional functions, it gave up its prerogatives and moral authority. Encouraged by the President of the Republic, the clash between progressivism and conservatism in the Supreme Court was thus nothing more than a smokescreen to hide the court’s instrumentalization. With the damage done at the political, legal and institutional level, there is no way not to be pessimistic. How can the Supreme Court watch over the Constitution with the entry of a minister without legal backing and who came out of obscurity to the proscenium with the condition of accepting “taking tubaína” with whoever appointed him? What to expect from a minister who, when pressed, may not hesitate when he has to choose between his godfather’s obscurantist interests and those of society?

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