Minister of the STF is not an employee of the president, says author – 09/09/2023 – Power

Constitutional lawyer Álvaro Palma de Jorge welcomes Cristiano Zanin’s votes in the STF (Supreme Federal Court). Not because I agree with their content, but because they show the minister’s independence.

Appointed by President Luiz Inácio Lula da Silva (PT), Zanin has been criticized by sectors of the left, disappointed with the conservative nature of the recently installed minister’s decisions.

For Jorge, who is a professor at FGV Direito Rio, there is a lot of hype around this when the opposite would be worse: a minister who always voted in line with the president who appointed him would erode the court’s legitimacy.

“The STF is not a party-political environment. No matter how much the president seeks to appoint someone who has a worldview aligned with his own, it cannot be expected that the Supreme Court minister will be an employee of the President of the Republic”, says Jorge .

Author of the book “Supremo Interest” (ed. Synergia, 2020), on the evolution in the choice of STF ministers, Jorge criticizes the idea of ​​making votes confidential, as suggested by Lula, and proposes measures to improve the appointment process for the cut.

There is pressure for Lula to appoint a woman to the STF, preferably black. What is your assessment of this type of criteria?
From a formal point of view, the criteria set out in the Constitution are notable legal knowledge, an unblemished reputation and age, over 35 years old. Within this, there is a very broad discretion. But, if you look at the history of appointments of STF members, you will see that they are almost always white men from the Southeast.

Constitutional law is a living right, in which themes such as equality, dignity, etc. are always interpreted. It is important to bring people into this debate who represent a worldview that is closer to the reality of certain groups.

What about a balance between conservatives and progressives, should that also be a concern?
The STF is not a party political environment. No matter how much the president tries to appoint someone who has a worldview aligned with his, it cannot be expected that the Supreme Court minister will be an employee of the President of the Republic.

The minister arrives with all the guarantees of independence precisely to be able to judge freely. It is a conceptual mistake to expect canine loyalty. In fact, in recent history, there are several examples of ministers who ruled against the interests of those who appointed them. This is natural and it is good that it is so.

O [Edson] Fachin, recently entered the court, judged a case of the impeachment process and voted against Dilma’s interests [Rousseff], who named him. André Mendonça voted against Daniel Silveira, contradicting the view of Jair Bolsonaro, who nominated him. Rosa Weber, nominated by Dilma, voted against the HC [habeas corpus] of [Antonio] Palocci.

So we don’t necessarily need to have a balance of forces. This sometimes happens in Brazil, as well as in the United States, because of the specific composition of a moment. The court can also be more liberal or more conservative; This is natural to democracy. But the plurality of views is important.

Sectors on the left have criticized Minister Zanin for votes considered conservative. Do these criticisms make sense?
From the point of view of the left’s disappointment with Zanin’s votes, this is an extra-court issue. What the minister demonstrated, and I think this is important, is independence on certain topics. He has different understandings than those of the president or the political group that supports the president.

See the case of minister Alexandre de Moraes. Today, no one has any doubts about the importance of his role in conducting the electoral process, but, at the moment he was nominated for the Supreme Court, the PT made a very harsh note, saying that it was a non-republican choice and that it violated the interests legal system in the country.

The minister should not be expected to vote because he has a political alignment A or B. What he has is a vision of law A or B, and this vision, which needs to be substantiated, may contradict a political interest.

I think there has been a lot of fuss made about these decisions [do Zanin]. The opposite would be very bad: if you have the perception that the minister judges not based on the law or his conviction, but because he is aligned with the president, then we would have a problem with the court’s legitimacy.

Lula stated days ago that ministers’ votes should be confidential, to prevent them from becoming targets of attacks. Like mr. see this issue?
There is no decision by the Judiciary that is not motivated and public. This is a basic guarantee of the rule of law. Now, we have a regime in which each minister’s votes are explicit; This highlights the individual role of each person and diminishes the position of the court as an institution. This, in fact, leads to certain debates.

Deliberation, which is discussion between ministers, can be more or less open. In the United States, for example, it is closed, and the vote that comes out of the deliberation is the court’s position. But there is no confidentiality in the decision. You know which ministers are in the majority and which are not.

In Brazil, with TV Justiça, there is social control of what happens in the Supreme Court. For better or for worse, I don’t think we can go back. If the president got the diagnosis of the disease right – it cannot be accepted that a Supreme Court minister is chased in the middle of the street because he gave an A or B vote –, the medicine was rushed, it was not well thought out.

Currently, not only the trials are closely monitored but also the process of appointing ministers. Since when has it been like this?
The process for choosing a minister has always been the same: the president nominates and the Senate approves. But, before the Constitution of 88, there wasn’t exactly a hearing like there is today; it was basically a rite of passage. After 88, with the structuring of this hearing in which the Constitution and Justice Commission looks in more detail at the name, attention also grew – because the role of the Supreme Court grew.

One of the hypotheses is that the person who first became aware of this importance was the Legislature itself. In the 90s, when the CPIs began to gain strength, there was a lot of doubt about the procedures, and the Supreme Court intervened several times. The STF also began to issue decisions limiting the use of provisional measures.

These more political issues gave new light to the choice of Supreme Court ministers. Then society itself began to see how important it was [esse tema]. We stopped to think about electing a deputy, a senator, and suddenly the Supreme Court minister could, alone, make much more relevant decisions.

In the late 2000s, from 2010 onwards, this issue gained more relevance due to political division. There was an expectation that someone would enter the Supreme Court and be closer to a political vision.

Did this process lead to a change in the profile of the appointed ministers?
In the macro, no. As a rule, they were white judges, etc. But what we are starting to see is a slightly greater concentration of people who have passed through Brasília. In other words, being close to central power became not a criterion, but a quality.

There is criticism that the Senate does not fulfill its role in nominating STF ministers, as it has not rejected a name for over a hundred years. Mr. Do you agree?
The fact that there is no rejection is not enough to say that the process does not work. See that, at the beginning of the government, Bolsonaro boasted that he would appoint a son to the Brazilian Embassy in Washington. It is an indication that also requires approval from the Senate. This name [do filho] It was never sent. Because the president knew he didn’t have the ability to convince the senators.

In a system of mutual controls, it is important to understand that the mere existence of the veto power already conditions the choices that the president can make.

How would it be possible to improve the process of choosing ministers?
Society can contribute more. First, the president could make a statement explaining why he is choosing a certain person. This is not reinventing the wheel, but it will make the debate gain an even greater public life.

Afterwards, we need more time for investigation, for deliberation; a gap of at least 30 days, as happens in Mexico, for example, between the appointment and the hearing. A third suggestion is for the Senate to hold public hearings prior to the hearing, for society to make contributions.

And, finally, the questionnaire that the nominee already sends to the Senate could include information about who supports him, whether anyone is financing the candidacy, paying for press relations, travel to visit the senator, etc. Additionally, it could include information about possible conflicts of interest in the court. That is, if the office has any relevant cases there.

These are changes that can be made without a constitutional amendment, which have a republican character and which could help energize the debate.

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X-RAY

Álvaro Palma de Jorge, 50
Lawyer, master’s degree from FGV Direito Rio and Harvard University, is professor of constitutional law at FGV Direto Rio. He wrote the book “Supremo Interesse” (ed. Synergia, 2020), about the process of choosing STF ministers.