Bolsonaro’s judgment shelters dispute for vacancies in superior courts

Due to the potential impact on the political horizon, especially in favor of the government of Luiz Inácio Lula da Silva (PT), the judgment in the Superior Electoral Court (TSE) that could render ex-president Jair Bolsonaro (PL) ineligible has fomented disputes of magistrates for vacancies in higher courts and in the Attorney General’s Office (PGR).

Proof of this came in the first session of the analysis of the case at the TSE, last Thursday (22), when the deputy electoral attorney general, Paulo Gonet, vehemently defended the condemnation of the former president for abuse of political power. and misuse of state media. Interestingly, his name even aroused the sympathy of Bolsonaro allies in the past.

In April, Gonet, quoted to assume the post of Attorney General of the Republic (PGR), had already expressed support for Bolsonaro’s conviction and his ineligibility for eight years, due to the holding of a meeting with foreign ambassadors in which the former president cast suspicion on electronic voting machines in July 2022. He has the support of ministers Gilmar Mendes and Alexandre de Moraes, of the Federal Supreme Court (STF). The current PGR, Augusto Aras, ends his mandate in September.

The terms used by Gonet in his speeches drew attention, highlighting in the TSE the speech adopted by Bolsonaro before the ambassadors as a reinforcement of other acts and a disturbance to “institutional tranquility”. He classified the ex-president’s criticisms of the electoral system as “reckless” and “unfounded” and highlighted their “infested anti-democratic potential”. In the written opinion, the prosecutor highlighted the “seriousness of the speech against the reliability of the voting system”, but without using aggressive expressions.

Observers believe that the effort by Gonet and other prosecutors and judges to seek to “show service” by targeting high positions would have among its motivations Lula’s decision not to consider the triple list of candidates by internal ballot of the National Association of Public Prosecutors ( ANPR), which pointed Luiza Frischeisen as the most supported, with 525 votes.

Vera Chemin, constitutionalist lawyer and Master in Public Law from Fundação Getúlio Vargas (FGV), explains that the competition between magistrates for vacancies in the superior courts reflects the intense political polarization in the country, which gained strength with the rise of the right represented by Bolsonaro. She notes that, given that the left has not faced equivalent opposition in the past, ideological radicalization is generating unprecedented reactions from the political scene, including from members of the judiciary.

The lawyer understands that political contamination resulted in the current race for vacancies, despite the constitutional requirement for the selection of judges and attorneys for the STJ and the STF. In this context, Bolsonaro’s condemnation would be the fastest and most efficient way of joining the power of those who use favors given to the President of the Republic and the President of the TSE as a guarantee of professional progression and more power, prestige and benefits.

The trial of the former president has already had two sessions at the Electoral Court and will resume this Thursday (29), starting at 9 am. On Tuesday (27), the Corregidor General of Electoral Justice and Minister Benedito Gonçalves, rapporteur for the Democratic Labor Party (PDT) action against Bolsonaro, voted for ineligibility.

Age can prevent Benedito Gonçalves from reaching the STF

For 20 years, seen as a potential candidate for a vacancy on the Federal Supreme Court (STF), the reporting minister of the PDT action against Bolsonaro, Benedito Gonçalves, obtained new projection in the TSE judgment. As a member of the Superior Court of Justice (STJ), his age is an obstacle to applying for the position, as the age of 70 that he will complete in January 2024 is also the limit for joining the Court. STF ministers have compulsory retirement at age 75 and nominees have had a dominant profile for around 50 years, like the most recent example, Cristiano Zanin, aged 47, chosen by Lula.

Constitutionalist lawyer André Marsiglia Santos considers the exchange of favors between candidates for public office and governments to be deplorable. “If the opportunistic exchange is proven, it is simply illegal, as it is a misuse of power, when authority is used for a diverted purpose”, he underlined. He added that the Judiciary is a power without the legitimacy conferred by voting. In this way, if their appointments also start to serve political conveniences, “the democratic deficit widens”.

For the political scientist André Felipe Rosa, the big problem in the dispute over judges is the lack of democratic structures within the selection process itself, which remain in the background when there is deliberately strong judicial activism, which can even figure within the STF and STJ. “This activism, which links male and female judges to politicians, makes external influences predominant in the outcome of those chosen in superior courts. Thus, the best does not necessarily win, but the one whose political weight prevailed the most”, he analyzes.

Alexandre de Moraes acts to prevent interruption of voting

The trial of Jair Bolsonaro (PL) at the TSE began on Thursday (22nd) under pressure from the president of the Court, Alexandre de Moraes, to avoid requests for an examination, especially by ministers Kassio Nunes Marques and Raul Araújo, who are considered aligned with the former president.

In addition, Moraes can still anticipate his vote, as he would be the last and thus isolate Nunes Marques. Bolsonaro expressed hope that the vote will be stopped, betting on a turn of the unfavorable scenario.

Of the seven members of the TSE, only Nunes Marques was nominated by Bolsonaro, which increases the risk of a majority favorable to the conviction being reached before the minister’s eventual request for a view. On the issue, Bolsonaro told the CNN: “Since the vote of the rapporteur has more than 300 pages, the ideal would be for someone to ask for a review at the beginning”. In this case, that “someone at the beginning” would be Raul Araújo, mentioned by Bolsonaro. Your eventual request for a view would have the power to paralyze the trial before the other votes.

In February, Moraes spearheaded the change in the internal regulations of the TSE, setting automatic deadlines of up to 30 days, extendable for another 30 days, for the return of the visa. If the order is not returned, the action is released automatically.

In the view of Juan Carlos Gonçalves, general director of the NGO Ranking dos Politicos, despite the use of objective criteria in selection processes, it is common for the dispute for vacancies in higher courts to be influenced by political issues and strategic alliances. “The appointment of judges to these positions often involves behind-the-scenes negotiations and agreements, which can raise doubts about the impartiality and independence of the judiciary”, he summarizes.

For this reason, he argues that the competition for these vacancies reflects the importance attributed to the Judiciary and its essential role in consolidating the Rule of Law. “It is crucial that positions in higher courts are occupied by competent magistrates committed to justice and impartiality, in order to guarantee the quality of the decisions taken and maintain society’s trust in the legal system. of magistrates for these vacancies is conducted in a transparent manner, based on technical and meritocratic criteria”, he said.