For consistency, Lula must appoint female judges – 01/25/2023 – Conrado Hübner Mendes

Collor nominated his cousin to the STF. Fernando Henrique appointed Gilmar Mendes. Lula nominated Dias Toffoli. Dilma nominated Luiz Fux. Fux helped appoint a 35-year-old woman as a judge for the TJ-RJ. His daughter. Collor’s cousin made phone calls to judges asking them to vote for a woman for the TRF. His daughter.

This collection of uninspired appointments gives the white and masculine, dynastic and nepotistic tone of our judicial tradition. And it emphasizes the role of presidents of the Republic and governors in promoting it. Legislative Assemblies and courts support the identity vocation of the Brazilian state. An undeclared identity that is reproduced by inertia in this meritocracy of the well-born and well-connected.

Lula called for “a joint effort for equality” at his inauguration. It could not, consistent with this commitment, appoint symbols of privilege to the courts. Nor to keep STF, STJ and TRFs so unBrazilian. The physiologism of the magistocratic and legal center corrodes the superior instances. Containing it would make a superlative contribution to the democratization of Justice.

The lack of gender and racial diversity in positions of power in Brazil is a global shame. Despite the requirement for a minimum number of female and black candidacies, and campaign resources, the 2023 Chamber of Deputies will have 17% women (increase from 77 to 91) and the Senate 13% (decrease from 11 to 10).

In 2022, 517 elected parliamentarians (senators, federal and state deputies) declared themselves to be black. According to the racial heteroidentification panel, half lied. Only 16% of the total is black.

In the courts, the imbalance affronts. The STF has 2 women among 11 ministers. The STJ has 6 women among 33 ministers. Identical proportion. No black women. Women represent 38% of the judiciary, 23% of judges.

Less than 18% are black magistrates, 8% are judges. Racial data is imperfect due to the negligence of the courts in registering them (“Negros e Negras no Politics Judiciary”, CNJ, 2021, and “Profil Sociodemográfica dos Magistrados Brasileiros”, CNJ, 2018).

The male whiteness of the country’s courts shames justice, if history and any ideal of progress weren’t ashamed enough. But it’s not just shame. By suppressing diversity and reproducing discriminatory social hierarchies, national institutions lose legitimacy and representativeness. Vulnerable groups cannot be seen there.

A priority criterion guided by gender and race does not compromise intellectual competence, professional experience, courage, dignity, composure and decorum. Qualities that, by the way, are rare in male plenary sessions today. Obviously a Damares Alves or a Sérgio Camargo doesn’t pass the test.

Anyone who claims that “it’s not enough to be a woman, you have to be competent”, and hence justifies the average of 80% of male whiteness in positions of power, has read little. The “identity amoebas”, as a deputy said the other day, have not been women or blacks. It has been people like the deputy himself.

Hard to believe that Lula didn’t learn from his gross mistakes. That, having appointed a former PT lawyer to the STF, whose performance is irrelevant, could aggravate the error and now appoint a personal lawyer, taken for granted by the betting exchange. It wouldn’t just be an ethical slip.

Lula must know that political gratitude to Tebet and Marina (appointed to ministries because, in addition to their competence, they were allies in the campaign) is different from private gratitude to a lawyer who provided services to Lula. One is a Republican, the other is not. Appointment of minister of the STF is a matter of state. In the public interest, not in the heart.

Behind the scenes also say that a minister of the STF about to retire tries to make his successor and engages in a campaign for a court official. Instead of valuing his jurisprudential legacy and respecting the retirement ritual, he would have chosen to invest his capital in a manorial legacy: an advisor sitting in his magistocratic captaincy. The degeneration of the court becomes natural and deepens the patrimonial wounds. The confusion between the public and the private knows no bounds.

Lula will have the opportunity to nominate two ministers to the STF. If someone wants to anticipate retirement, maybe three. Journalistic gossip announces that he must nominate a woman to replace Rosa Weber and a man to replace Lewandowski. As if the ratio of 9 men to 2 women was enough. Lula could change this ratio to 8 to 3. At best, 7 to 4. It will still be little, but it is within reach.

Lula, nominate teachers, lawyers, defenders, prosecutors, judges. The promised “broad front against inequality” passes by. It is not difficult to make history in the Brazilian Judiciary. She is winking at Lula. Again.

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