Government may reduce racial inequality in the Judiciary – 03/14/2023 – Power

President Luiz Inacio Lula da Silva (PT) will have the chance to reduce historic racial inequality at the top of the Judiciary with the possibility of up to ten nominations for the country’s main courts throughout the current term.

Created in 1891, the STF (Federal Supreme Court) had only three black ministers: Pedro Lessa, Hermenegildo de Barros and Joaquim Barbosa. In the STJ (Superior Court of Justice), formed by 33 magistrates, Benedito Gonçalves is the only black minister in the history of the court, in 33 years. No black woman has been a minister so far.

At the Supreme Court, two vacancies will open in 2023: Ricardo Lewandowski, in May, and the current president of the court, Rosa Weber, in October. Both will turn 75, compulsory retirement age.

Lula, however, has already admitted the possibility of nominating his lawyer, Cristiano Zanin, a white man, for a vacancy on the STF — although he faces questions that it could violate the principle of impersonality and pressure inside and outside the government for the choice of a female judge. black.

At the STJ, Justice Jorge Mussi retired early, in January, opening a second vacancy for the court in addition to the one left by Felix Fischer, in August last year.

Ministers Laurita Vaz, Assusete Magalhães, Antônio Saldanha Palheiro and Og Fernandes will reach the age limit for retirement in the next four years. There is also the possibility that ministers Paulo de Tarso Sanseverino and Villas Bôas Cueva ask for early retirement, as Mussi did.

In the court, ministers are chosen and appointed by the President of the Republic, from a triple list drawn up by the STJ.

The president of the Racial Equality Commission of the OAB São Paulo, the lawyer and doctor of law Irapuã Santana, says that it is necessary to charge the Executive and the Legislative on the racial profile of the nominees, so that representativeness is considered.

“We have in the history of the Supreme less than 1% of black ministers. We need to stop, look and make these institutions inclusive. Make the rulers pay attention to this responsibility”, he says.

In 2014, he says he was the only black adviser on the court, in the cabinet of Minister Luiz Fux. From 2016 to 2018, he went through the same situation when advising the minister on the TSE.

Santana mentions the names of black judges who can be chosen by the president. Among the women, USP professor Eunice Prudente, Bahia Public Prosecutor Lívia Vaz and federal attorney Chiara Ramos. Among the men, Minister Benedito Gonçalves and TJ-RJ Judge Paulo Rangel.

The fact that the Judiciary is mostly composed of white men is an obstacle to the application of laws, according to activist and lawyer Ewerton Carvalho. “It’s a profile that doesn’t know the reality of the average Brazilian”, he says.

This lack of representativeness interferes with the processes, since the judge, when analyzing a case, first decides and then looks for the legal basis, he says. Therefore, decisions are based on subjectivity.

“The lack of people who make up the great Brazilian mass within these spaces means that our laws, although good, are poorly applied”, says the lawyer.

UFBA (Federal University of Bahia) law professor Samuel Vida cites as an example of this distancing between a white Judiciary and the Brazilian reality a 2013 decision, in Rio de Janeiro, in which the magistrate declared that Candomblé was not a religion.

According to Carvalho, there is an unconscious bias that sees black and poor people as liable to commit crime. “The Judiciary weighs the hand of the pen of the sentence when judging black people. One of the consequences is the mass incarceration of this population.”

Data from Depen (National Penitentiary Department), surveyed from January to June of this year, show that the prison population is made up of 67.81% blacks (51.02% brown and 16.79% black).

According to Samuel Vida, judicial decisions over the last few decades show the denial of the problem of racism among magistrates. He says that this debate only started in the Judiciary in 2014, with the creation of racial quotas for entering legal careers.

Among the obstacles to accessing the profession are the lack of financial support, the lack of time to study and the high cost of the contest for the judiciary.

For Vida, the selection model for the position of judge is also a barrier for blacks.

In recruitment, racial criteria are assumed, although not explicitly, he says. “The process is organized in such a selective way that it is a type of competition for exclusive access to the elite”, says the professor.

The average preparation time required is five years of exclusive studies, according to the professor. “That is, it is for someone who can be bankrolled for this period. It is almost impossible for the black community,” he says.

According to specialists, the quota policies in the judiciary’s career contests are an important initiative, but insufficient to increase representativeness.

For Chiara Ramos, federal prosecutor and co-founder of the Abayomi Juristas Negras collective, racial quotas may even facilitate access for black people to intermediate contests –technicians and analysts–, but not for judges.

In competitions for the position, quotas are applied after approval in the tests and not as a vacancy reservation from the beginning of the selection.

“In the contest of the Federal Regional Court of the Northeast, blacks were less than 5% of the people who signed up. None of them were approved in the first phase. We had vacancies reserved for black people that were not occupied”, he says.

According to the prosecutor, the case exemplifies two factors that prevent blacks from accessing the judiciary.

First, the lack of representativeness means that this part of the population does not see these spaces as possible to be occupied. As a result, there is a low rate of enrollment in tenders.

Second, the first phase cutoffs, which eliminate blacks at the beginning of the process. “The way the evidence is prepared privileges those who have access to certain information that the black population in general does not have.”

A study by the CNJ (National Council of Justice) suggests that there has been an increase in blacks in the Judiciary in recent years. The percentage of blacks who entered the career before 2013 was 12%. Between 2016 and 2018, it rose to 20%. In the years 2019 and 2020, it increased to 21%.

However, the methodologies of the censuses already carried out are different, so the comparison is not perfect. The percentage may also be inflated, as not all judges in the country responded to the survey.

Irapuã Santana states that the profile of black magistrates is unknown. “We don’t know who black people are and where they are. We know where they are not: in the STF, in the STJ and in the TSE. There is Minister Benedito Gonçalves, but he is one in 33 in the STJ, one in seven in the TSE.”

In a note, the CNJ stated that it has been working to increase the presence of black people on its staff. Among the actions is the policy of racial quotas, applied to entry into the judiciary and public services.

On November 25, the council launched the National Judiciary Pact for Racial Equity, with the aim of “fostering racial representation, dismantling institutional racism, implementing public policies based on evidence and establishing inter-institutional articulation to expand dialogue with organs of the System of Justice and organized social movements”.