Do STF ministers need a mandate? – 04/21/2023 – Power

Every negotiator knows that sometimes people declare a position about what they want without being clear about their real interest, desires or needs. This also occurs in public debate.

A lot of energy is spent in favor of maintaining or changing a certain rule or institutional design, without discussing, in the end, what are the objectives we pursue and the values ​​we want to promote.

This is what happens in the debate on the need to create a mandate for the ministers of the STF (Federal Supreme Court).

In the current model, the person nominated to occupy a seat on the STF can occupy it until reaching the mandatory retirement age, currently established at 75 years. This means that a person nominated at the minimum age of 35 could in theory spend 40 years in the Supreme Court, that is, ten times as long as a presidential term.

Even with a more recurrent indication of age, such as 50 years old, this person would participate in the most important political decisions in the country for two decades.

Given this scenario, the creation of mandates appears as an intuitive way to deal with this problem. But this is an insufficient solution to the real underlying problem, with the potential to create even bigger problems.

If a mandate is created, for example, of 12 years, what measures will be taken to prevent these ministers from judging cases with an eye on their future careers? This is a risk to the impartiality of your performance.

Also, how to prevent them from distorting the political and legal field with their vast influence after they leave office? This is a risk of encouraging even stronger structures of influence peddling.

If we forbid them to be able to carry out all kinds of public and private activities of impact after the end of their term, will we establish substantial lifetimes to fund the reasonable group of former ministers that will emerge?

If so, we will be creating a perverse incentive for the Supreme seat to be used as a bargaining chip in political negotiations.

In addition, we will create a class of supra-maharajas of the Judiciary, whose advantages will probably be claimed by the rest of the Judiciary and other legal professions. Is this what we want?

We can think of better alternatives if we are clearer and more frank about what bothers us about the current model.

One area of ​​concern concerns the performance of the nominated person. There is a risk that the chosen person will be unskilled or incompetent. If so, the country has to put up with this bad choice for years and perhaps decades.

Another relevant risk is that of rigging the court with people who are deeply aligned with any ideology or interest group. In that case, that minister or minister will serve as a power anchor for that group, even if he or she is unable to get elected again.

So we need better answers to choices made by unskilled or ideologically inflexible people.

In this field, joining the Supreme Court cannot be a blank check. In addition to improving the selection model (as I suggested in a previous text in Sheet) we can think of a model of confirmation by the Senate, either after an initial trial or periodic period.

Another field of concern concerns the lack of control mechanisms over the time of departure of a minister.

In the current model, we are between extremes: on the one hand, the Senate can remove a minister through a traumatic impeachment process, or it is up to the occupant of the seat to choose when to leave; on any day and time of your choice, before your 75th birthday.

This is in fact very casuistic and opens the door to all kinds of opportunism and instability. It is a problem with the timing of a minister’s departure, which also has implications for the timing of the selection of the person who will replace him.

In this case, we can incorporate certain rules into the retirement process that author Adrian Vermeule, inspired by John Rawls, calls “veil of ignorance mechanisms”.

These are very common rules of constitutionalism, which project the consequences of certain decisions into a future that will be in unknown conditions.

For example, today, no electoral rule can be modified less than a year before elections. The Constitution establishes a limit, so that decisions about electoral rules are taken without being sure about who it will benefit.

In a scenario of uncertainty, without knowing who will be doing well and who will be doing poorly, legislators tend to be fairer, rewarding less the advantaged situation and punishing less the disadvantaged situation.

We need something similar with regard to controlling the entry and exit time of male and female ministers.

For example, why should the new appointment take place in the face of a concrete vacancy and take effect immediately?

We can introduce uncertainties into this scenario. For example, why shouldn’t retirement be announced months or years in advance? Wouldn’t it be possible that a minister could only leave office at the end of the current presidential term? Why is the nomination of replacement not made years before the prospect of retirement?

In the meantime, the process of selecting the person who will replace him could be carried out, assuming the chair only in a future situation, such as months later or at the beginning of another term.

It is possible to detect other problems with the current model and imagine other solutions to deal with them.

The diagnoses and proposals above are just a way of illustrating how we can discuss the improvement of the Supreme in a more creative and efficient way. But to do so, we need to abandon the simplistic answers that plague public debate.