Who deserves a seat on the STF? – 03/15/2023 – Power

The conversation does not progress. For at least a decade, the public debate has been intensely mobilized around the appointment of new ministers to the STF (Federal Supreme Court). However, little is discussed beyond some biographical aspects of the nominees and whether the model for nominating and occupying the vacancy should be modified.

In general, the questions posed in the debate do not change and, unsurprisingly, neither do the answers. So the news of new nominations is a mix of gossip and superficial dissatisfaction with the current model. We need to discuss this matter in new terms.

The next vacancy on the STF will open in May with the retirement of Minister Ricardo Lewandowski, who will turn 75, the age limit for acting on the court.

I believe that the central question is: what are the qualities that a person must have in order to perform well as a minister of the Supreme Court?

Only if we answer this question can we seriously discuss whether a particular person’s nomination is good or bad. However, in order to know what qualities are needed to fill this job vacancy, it is also necessary to clearly discuss what tasks must be performed well, without naivety or cynicism.

If we are frank, we have to admit that the Supreme Court –like every Constitutional Court in the world– is not like any other court.

In 1835, Alexis de Tocqueville said that peace, prosperity and the very existence of the country rested in the hands of the justices of the US Supreme Court. For him, choosing bad people for this function could lead to situations of anarchy or civil war. For this reason they should have qualities that went beyond those required by the judiciary in general.

Just as an excellent law professor will not necessarily be an excellent judge, an excellent federal judge will not necessarily be an excellent minister for the Supreme Court.

The qualities needed to carry out these roles are different. Knowing how to solve legal problems is a necessary, but not sufficient, condition for being on the STF.

This is because the role of ministers of the Supreme Court is not just to interpret the Federal Constitution. They have to make a series of political decisions to exercise their office. The most obviously unavoidable and political task is that of deciding which cases should go to trial soon and which should await trial.

In addition, as is evident, there is a political option on how to behave in the face of exceptional circumstances. There are also political options on how to act in public debates and before other Powers.

In summary, the task of Justices of the STF is not to deal only with legally difficult and complex cases. There are difficulties about the institutional and economic implications of their decisions, difficulties about when to adjudicate a case, difficulties about how to publicly communicate a decision, how to interact with causes of broad national interest, etc.

It is possible that judges from other instances face these difficulties, but not with the frequency and magnitude with which this occurs in the STF.

If this is the job, what must be the qualities of a person worthy of the job?

It is necessary that senators and the media determine whether the person has had experience solving complex legal and political problems (in the broad sense). These people tend to be endowed with intellectual humility (to understand a problem from different perspectives) and temperance (resolving conflicts without the vices of cowardice and temerity).

In other words, demonstrate that you have a certain amount of practical wisdom.

In addition, the Federal Constitution also points out ways, despite being concise in the requirements. You must have Brazilian citizenship, be between 35 and 70 years old, have remarkable legal knowledge and an unblemished reputation.

With that, it seems to me that the Constitution is signaling that the nominated person needs to have demonstrated in his trajectory that he is capable of having built a solid reputation inside and outside the legal community.

They cannot be people without experience, without bibliography, with little to lose.

It has to be a person who built a name and, with that, bonds of trust with different audiences, necessarily in the legal environment and also in other relevant ones. Illustrious strangers can make bizarre decisions with little negative consequence for themselves.

Finally, it is worth considering that the quality of the indications can be thought of from the composition.

A court with 11 justices is justified by the fact that the plurality of formations and looks deliberating on a situation increase the chance of reaching a better solution than a single person.

Aristotle called this “the wisdom of crowds.” So a good person to be there must be someone who has a different perspective than the majority there. Therefore, it is not enough to contemplate an absent career, such as the Public Defender, but also someone with a different personal and professional trajectory, such as being a woman activist in the black movement.

In view of all this, the choice for the STF vacancy is not, cannot be (and should not be), impersonal and technical. However, the STF is also not a political capacity.

The Supreme Court is a state institution, crucial for democratic survival and development. It should not be used to pay favors to acquaintances or to please current members.

Given the deep political crisis we still find ourselves in, it would be important to have someone with a firm democratic orientation, who can count on the trust and respect of a large part of the population. Anyone who disagrees should present better criteria.

---

UPCOMING RETIREMENTS AT THE SUPREME

GOVERNMENT 2023-2026
Ricardo Lewandowski (May.23)
Rosa Weber (Oct.23)

GOVERNMENT 2027-2030
Luiz Fux (Apr.28)
Carmen Lúcia (Apr.29)
Gilmar Mendes (Dec.30)

GOVERNMENT 2031-2034
Edson Fachin (Feb.33)
Luís Roberto Barroso (mar.33)

GOVERNMENT 2039-2042
Dias Toffoli (Nov.42)

GOVERNMENT 2043-2046
Alexandre de Moraes (Dec.43)

GOVERNMENT 2047-2050
Kassio Nunes Marques (May 47)
André Mendonça (Dec.47)