The appointment of supreme judges in the US and Brazil – 02/04/2023 – Marcus Melo

The process of appointing supreme court judges is fundamentally political. This is the conclusion reached by political scientists Epstein and Segal in a study on the subject. The process “is and has always been political and ideological from the beginning”. About 90% of all US Supreme Court appointments since 1801 are from supporters of the president or people ideologically very congruent with him (a).

Partisanship in the US is crystal clear for courts at the state level: in 90% of them there are elections. In the current Supreme Court election in Wisconsin, a key state where issues like redefining constituencies are raging, both candidates have already spent $30 million on media advertising.

Partisanship can occur by consensus: in post-war Germany until recently there was an informal rule by which the two major parties divided nominations. In Brazil, congruence is more important than partisanship. But President Lula has already nominated former candidates for deputy for the PT and a former lawyer for the party. Now he has already mentioned the name of his personal lawyer, which is entirely outside the above pattern.

Appointments that are explicitly partisan or deviant from median preference generate costs for presidents. In the US, they are in danger of being defeated: about one in five nominations have not been ratified by the Senate. In Brazil, there was an isolated case, but it may happen again, including in the form of an informal veto. In the US Senate, the barrier is higher: it ends up being a supermajority (60% quorum due to the filibuster rule).

The STF differs from the American Supreme Court on which it was inspired. I highlight two aspects: 1) given the intense individual procedural activism in the STF, it is less important to have a majority in the court: a minister ends up having veto power. An appointment is of crucial importance. Although in the USA the president appoints not only individual judges, but also who will preside over the Court (often for decades, the presidency is for life), what matters in the end is the formed majority; 2) The STF has broad criminal jurisdiction, magnifying its political importance for parliamentarians and the president.

Bork, who was nominated by Reagan but lost in the Senate, said at the time that “when a court is perceived as a political institution and not a judicial institution, nominees will be treated as political candidates.” This has been the pattern in our country over the past two decades with rare exceptions.
If Lula appoints his lawyer, the political costs will be very high. It would mark the court for decades. Personalization of judicial power would be more insidious than partisanship.

PRESENT LINK: Did you like this text? Subscriber can release five free hits of any link per day. Just click the blue F below.