STF: Lula appointing Zanin would reinforce the search for a line-up – 03/25/2023 – Power

A possible appointment of lawyer Cristiano Zanin by President Luiz Inácio Lula da Silva (PT) to the STF (Federal Supreme Court) would illustrate the search for an alignment in court decisions that does not always occur, even among those who had formal links with the Executive.

Zanin defended Lula in the Lava Jato Operation processes, including the one that resulted in the PT’s arrest for 580 days in Curitiba. The actions were later annulled by the STF.

Earlier this month, when asked about the possibility of nominating the lawyer to the Supreme Court, Lula said that “everyone would understand” if he did that and called Zanin a friend and companion.

The choice of names close to the president’s is common, but due to ties linked to the government, and not directly to the president, in the case of Zanin.

Survey made by Sheet based on the resumes of ministers appointed since 1985, it shows that, of the 28 chosen in the period, 9 had some function in the federal executive when they were chosen, which represents 1 in every 3 appointed.

André Mendonça, nominated by Jair Bolsonaro, Alexandre de Moraes, by Michel Temer, and Dias Toffoli, by Lula, are the most recent examples of ministers who integrated the governments of the presidents who nominated them.

Toffoli was from the AGU (Advocacia-Geral da União), Moraes, Minister of Justice, and Mendonça held these two positions in the Bolsonaro government.

Bolsonaro claimed to be looking for a minister who “drinks beer with me at the weekend” and someone “terribly evangelical”, which he claimed to have achieved with Mendonça, then a Presbyterian pastor.

In the case of Toffoli, Lula’s direct assistants at the time of the nomination —the eighth made by the petista— told the Sheet that the choice was the first one made by personal decision of the president. The lawyer had worked as a legal advisor for the PT and defended the party in election campaigns.

Proximity also marked 2 of the 3 nominations made by Fernando Henrique Cardoso (PSDB): Nelson Jobim was Minister of Justice, and Gilmar Mendes, from AGU.

The current dean of the STF faced resistance in the legal environment when he was chosen. In 2002, when the nomination was made, the then president of the court, Marco Aurélio Mello, called him an “unsurpassed leather technician”.

Marco Aurélio, in turn, is the cousin of Fernando Collor de Mello, who chose him for the position in 1990, when the magistrate was minister of the TST (Superior Labor Court).

There are also several cases of non-formal ties at the time of appointment.

Minister Edson Fachin was a professor and linked to the CUT (Central Única dos Trabalhadores). Former minister Eros Grau was a professor at USP and was part of a group of lawyers who worked in partnership with the PT against privatizations in the FHC government.

Specialists affirm that the pressure of different groups and the regional element are other factors that influence the choice of a name, but that the main one is the search for someone aligned with the president’s thinking.

“Half the justification of the PT having bought the agenda of the Justice system was the belief in its political potential. There was an attempt to make the Judiciary a partner of various public policies”, says Fernando Fontainha, one of the organizers of the book “Os Donos do Direito: a Coletiva Biografia dos Ministers do STF (1983-2013)” (Eduerj).

Professor at Iesp (Institute of Social and Political Studies) at Uerj, where he coordinates the Deciso (Nucleus for Research in Law and Social Sciences), Fontainha says that there is a trend of professionalization in nominations to the Supreme Court compared to the dictatorship period, in which personal ties had more relevance in the dispute.

“The Supreme Court has become a major agenda and, today, you have real campaigns organized for STF ministers. What we don’t have are norms that organize this competition”, he says.

Court researcher and coordinator of the Center for Studies in Law, Justice and Society (Nedjus) at UFSCar (Federal University of São Carlos), professor Fabiana Luci de Oliveira says that, even in cases of close nominees, not always the way to vote reflects the expected alignment.

“Over time, when we look at presidents who managed to make more than two appointments to the STF, we see that the ministers appointed by them tend to vote in the same direction and form blocks, but this does not imply that they are voting in the expected direction by the president who appointed them,” he says.

Oliveira claims that there are theories both in Brazil and abroad about the influence of coexistence between ministers on voting.

“It is possible to see the effect of the cutoff time. At the beginning, the ministers tend to vote as expected, but, over time, the effect of the institution on the minister’s position is observed and they tend to get closer to the majority behavior. “

An example of this was the trial of the monthly allowance, which convicted 25 of the 37 defendants, including historical figures of the PT, such as former minister José Dirceu and former president of the party José Genoino. Of the 11 ministers who were part of the court, 8 were appointed by Lula and Dilma Rousseff.

“Part of the criterion for knowing whether the Supreme Court is working well is the presidents who indicated the ministers are not 100% satisfied with the votes”, says Diego Werneck, professor of constitutional law at Insper.

“On the other hand, because it’s a court that decides open questions, presidents tend to appoint people who think like them, so it would also be strange if there wasn’t some kind of alignment”, he adds.

Werneck also says that, among the most experienced nominees, the vote may reflect the reputation built in the career prior to the Supreme Court, which may also lead to decisions contrary to the president’s expectations.

Another aspect to be considered, according to Eloísa Machado Almeida, professor at FGV Direito SP and coordinator of the study group Supremo em Pauta, is that nothing prevents former members of governments from judging actions contesting measures adopted by them in the Executive.

“The Supreme Court has decided that ministers are not impeded and can judge actions, which calls into question the impartiality of jurisdictional provision”, he says.

Regardless of whether or not they are close to the president, Eloísa says that it is the role of the Senate to verify that the nominated name meets the requirements for the post.

“If it is someone of personal interest to the president, it can be vetoed by the opposition in the Senate. If it is a good name, the Senate will be constrained to approve it. However, this demands that the authorities act at least guided by the public interest”, says the teacher.