Supreme interest! The consequences of Lula's choice for STF Minister.
"You are free to make your choices, but you are a prisoner of the consequences"
Pablo Neruda
Once the first name to join the Federal Supreme Court (STF) in the two vacancies opened this year has been defined, the race has begun for the nomination of the second name, whose choice will take place in October 2023. Speculation is running wild. New names emerge every day to compose the court. Some have legitimacy to run for the vacancy, others put themselves in the race without the slightest chance of being chosen, but as a form of self-promotion.
The press has been pressuring President Lula that the new nominee should be a woman and preferably black. They claim that it will fill two minority representation quotas at the same time. Criticism is directed at the President for stating that he will make a personal choice and not based on third party indications, or criteria of social representativeness.
I fully understand President Lula's position. Let me explain. In a more stable Brazil, less affected by aggressive political cycles, the choice of a Justice for the STF would be reduced to the criteria established in the Federal Constitution, namely, notorious legal knowledge and unblemished reputation, taking into consideration candidates with greater representation from society, as President Lula himself did during his previous terms. In that period a black minister (the first in the House), a minister from the Northeast, and a woman minister were appointed. Lula expanded the criteria of social representativeness of the ministers of the highest court.
Brazil has changed and the STF has become enormously politicized.
In a serene Brazil the STF judges constitutional questions after political effects. It decides, therefore, the legal effect of the law deemed unconstitutional. In today's Brazil, the STF decides causes that affected policies in force, judging the constitutionality of a measure recently approved in Congress. That is, as the holder of the last word, the STF started to decide the political paths of the country. This is due to the incompetence of the other Powers in the attributions given to them by the Federal Constitution. If Congress delays in formulating laws, the STF does it. If the Executive is incompetent in executing laws and projects, the STF takes its place. Monocratic decisions, those handed down by a single judge, have gained in volume. Justices began to be exposed and publicly pressured to the point of receiving death threats. A social schizania has been created, where ministers are applauded or booed in the streets because of their decisions. The scenario resembles passionate soccer fans of rival teams, but in this case the players are the ministers of the STF. The average Brazilian knows the names of the 11 justices of the Court by heart, but they can't even name the first team of the Brazilian men's soccer team, coincidentally composed of 11 professionals.
Those ministers who were less resilient succumbed to popular pressure and started to decide based on public opinion. They changed positions quickly if the street winds took other directions. Jurisprudence became mere rhetoric. Legal precedents were no longer valid as a form of argumentation, and laws began to have a very elastic interpretation. As a result, legal security went out of the window. Decisions were no longer based on the merits of the case, but on the impact of the decision on public opinion.
Well, in this politicized scenario, the political class and certain "duly selected" businessmen were victims of the Lava Jato and persecuted relentlessly by the Curitiba criminal organization. Lula was imprisoned for 580 days and publicly flouted by part of the press and the radical right wing that soon after would reach the Palacio do Planalto.
The clumsy position of the STF in the barbarities committed by Lava Jato had dramatic consequences in the political and economic universe. If the Supreme Court had acted with a firm hand at the time of the Lava Jato aberrations, Brazil would certainly be a different country. Fortunately, the STF has corrected this initial hesitant posture to put legality before popularity. However, the casualties counted in this period are impactful, both in the destruction of the reputation of the political class and in the devastation of companies and job creation.
The situation has changed and the STF is largely responsible for this change. It has acted firmly in defense of democracy and the rule of law in the face of strong threats, made concrete with the attempted coup of January 8th of this year. But nothing guarantees that this gloomy scenario is over. Lava Jato still breathes through apparatus and from time to time gives signs of life. Radical movements still flourish in the country and political polarization is a reality. Therefore, with the return to the top of the political scene, elected with a very narrow margin, it is desirable that President Lula be very careful in nominating the next ministers.
Although I believe that the memory of the courts will not allow the return of the barbarity practiced by the Republic of Curitiba, it is natural to be cautious, because as the proverb says "a dog bitten by a snake is afraid of a sausage". I don't see, in President Lula's posture, the idea of appointing vassals, but rather appointing people that he fully trusts in their firm legal positions and that will not bow to the translucent cries of public opinion.
A strong STF is fundamental for the country's new moment
The history of the STF is replete with examples in which the famous "gratitude for the nomination" does not last very long. It is, therefore, in the nominee's profile and in his or her real belief in the defense of the Constitution that one must place one's bets. I recognize that social representativeness will not be the first parameter of this new choice. Brazil needs a strong STF, and for this, strong ministers of character and of legal, democratic and fair opinion are necessary. Justices that will respect the constitutional precepts of ample defense, the rule of law, and individual rights and guarantees, whether they are men, women, white, black, brown, indigenous, yellow, homosexual, heterosexual, or LGBTQIS+.
My late father, an important figure in the Brazilian judiciary, used to tell me that, during the military dictatorship, the ministers of the STF were chosen for their deep legal knowledge without any promise of favors, because the high-ranking military believed that, with the end of the dictatorship, they should be judged by the law, wisdom, and the beliefs of the ministers, and not for eventual favors to those who would no longer be in power. Thus, Brazil had excellent ministers in a period when politics did not pass through the higher courts.
If Brazil manages to stabilize itself politically, future nominations to the STF should return to the track of priority for greater representative equality in Brazilian society. For now, it is too much to demand that this criterion, although republican, but which does not generate any political capital, should prevail over the certainty of the "death dead, or killed death" of the world's biggest scandal of judicial corruption practiced by the Curitiba republic, directly responsible for the frontal attacks on the country's democratic regime. That's why I can understand President Lula's position, although I hope for more social representation.
