No one looks at the résumé of candidates when choosing magistrates for the Supreme Federal Court of Brazil, but rather their political connections. This maxim that circulates among the experienced senators of Brasilia is followed more by the legal environment than the president, Jair Bolsonaro, responsible for recommending the substitutes for justices Celso de Mello and Marco Aurélio Mello, who will leave the Court in November of this year and in July 2021, respectively.
The choice of Mello's replacement, the dean of the Court, is especially relevant. He is the speaker of the process that investigates whether Bolsonaro tried to interfere politically in the Federal Police, as denounced by the former Minister of Justice, Sergio Moro. If the investigation is not concluded within the next four months, Mello's successor will become the rapporteur for the case. While the president throws balloons to please his base – such as that he will recommend a conservative and "terribly evangelical" magistrate -, behind the scenes, lawyers, magistrates of the Superior Court of Justice (STJ), prosecutors and members of the first level of the Government Bolsonaro are fighting for the president's favor to, in the medium term, obtain his approval for the main judicial position in the country. But the candidates also have to pass the screening of the senators, something that the president is not taking into account, as reported by some allies to EL PAÍS. In the entire history of Brazil, parliamentarians have only rejected five names, all in 1894, during the Government of Floriano Peixoto.
Among the possible candidates to the Supreme Court are the president of the Superior Court of Justice, João Otávio de Noronha, who granted the house arrest to Fabrício Queiroz, former adviser of Flávio Bolsonaro and investigated for diversion of public money in his cabinet of the Legislative Assembly of Rio de Janeiro, a potential man bomb for the Bolsonaro family. The appointment of the current Minister of Justice, André Mendonça, suspected of using the public structure to monitor possible opponents of the Government, is also being considered. Also on the list are the minister of the General Secretariat of the Presidency, Jorge Oliveira, an old ally of the president, and the attorney general of the Republic, Augusto Aras, criticized for directing the Prosecutor's Office with political criteria.
Noronha is increasingly favored by Bolsonaro, who has already declared that her relationship with him was "love at first sight." At the beginning of July, the president of the STJ accepted a request from Fabrício Queiroz's defense and granted him house arrest, arguing that he could be infected with coronavirus in the prison where he was held, in Rio de Janeiro. Queiroz is being investigated for coordinating a system of illegal appropriation of the salaries of the employees of Flávio Bolsonaro's cabinet in the Legislative Assembly of Rio. In the same period in which the benefit was granted, Judge Noronha analyzed 725 applications with the same argument and denied 700, granted 18 and disregarded the other seven because the defense lawyers withdrew. The data were published on the G1 portal.
Regarding Minister Mendonça, Bolsonaro has already given him some votes of confidence. The first "promoted" him from state attorney to Minister of Justice, when he had to replace former judge Sergio Moro, his former favorite for the Supreme Court. Then he accepted his recommendation to the Ministry of Education: the new minister, Milton Ribeiro, is a friend and political godson of Mendonça. Now, he is counting on him to map a group of 579 people (between public security authorities and university professors) who would be members of "anti-fascist movements." The Prosecutor's Office has given the Ministry of Justice ten days to account for this investigation.
Minister André Mendonça has in favor that he fits the profile of “terribly evangelical”. He's a member of the Presbyterian church, and it could mean a nod to the religious wing that supports Bolsonaro. And as for Minister Jorge Oliveira, his loyalty to Bolsonaro carries great weight. He has a degree in Law and a reserve officer of the Federal District Military Police. He was head of the cabinet of deputy Eduardo Bolsonaro, son of the president, for three years. He came to office because his father, Jorge Francisco, advised the president for 20 years. Against him is his non-existent judicial career: despite having graduated in 2006, he only began to practice in 2013 and has defended few cases in court.
As for Augusto Aras, Bolsonaro chose him to head the Office of the Attorney General of the Republic, although his name did not appear on the list of candidates proposed by the union. And, in a live broadcast on his social networks, he said that he could propose him to fill a third vacancy in the Supreme Court, if it arose. However, the attorney general, who was politically mobilized to get to office, has already said that the president's suggestion causes discomfort and that he understands that he has reached the peak of his career with his position in the Attorney General's Office.
The politicization of the Brazilian Supreme Court is not new, but it has gained prominence in the last 15 years due to a role that the Court itself has assumed: that of marking ground in the political debate. This new position makes him a target of criticism from various political spectra. The most recent ones come from Bolsonaristas and from the presidential family itself. Against both there are investigations into false news, support for anti-democratic demonstrations and, in the case of the president, the suspicion that he has politically interfered with the Federal Police.
“The difference between the current government and the previous ones is that, before, the political dispute over vacancies in the Supreme Court took place behind closed doors; now, it is open face. In addition, investigations involving relatives and supporters of the president are taken into account, ”says Doctor of Political Science Leonardo Barreto. “Bolsonaro is the first president to use the recommendations. He says he is going to recommend someone because he has certain characteristics ”, adds the professor at the University of Brasilia and president of the Brazilian Association of Political Sciences, Flávia Biroli.
Currently, Bolsonaro's power to recommend does not mean, a prioriThat reap the rewards later, since these recommendations, for certain reasons, do not always work. "Politicians do not analyze the career of the magistrate. The decisions you can make don't worry them too much. What interests them is that they can say that this magistrate is theirs, ”says Maria Pia Guerra, professor of Public Law at the University of Brasilia. The performance of a magistrate is foreseeable, according to Guerra, when he has a consolidated legal career, with academic production, publication of books or experience in the courts as a lawyer, judge or prosecutor.
In his opinion, naming someone who enjoys political support is a mistake for any president. "Once he has taken office, you no longer control him." The episode of the current magistrate and next president of the Supreme Court, Luiz Fux, was notorious, who hinted that he would help the Workers Party (PT) in the lawsuits in which he was involved, including former minister José Dirceu. According to Dirceu himself, Fux would have told him: "I'll solve this in a flash." Fux, who has publicly admitted that he insisted that the PT recommend him for a position in the Supreme Court – at the time he was president of the STJ and President Dilma Rousseff recommended him, in 2011 – he was tough in all the processes investigating the PT's actions in the case of corruption known as Mensalão and also favorable to the actions of the Lava Jato case that penalized the game.
The second level and the Superior Court of Justice
In a second level of candidates for the Supreme Court appear the names of the general promoter of disciplinary action and STJ magistrate, Humberto Martins; Judge Ives Gandra Filho, of the Superior Labor Court; and the federal judges of Rio de Janeiro Marcelo Bretas and William Douglas. There is also a third bloc, with reduced possibilities because they have the support of a part of the opposition and few contacts in the Executive. This group is made up of STJ magistrates Herman Benjamin, Luís Felipe Salomão and Mauro Campbell.
The dispute in the STJ is also political, but goes through a technical filter that prevents the president from directly electing his favorite. Bolsonaro has to decide from the triple lists presented by the court itself. The 33 seats of the court are divided as follows: 11 are for members of the federal regional courts, 11 for the magistrates of the Courts of Justice of the States and the other 11 are distributed alternately between lawyers and prosecutors: now it would be up to lawyers recommend someone. Therefore, a federal judge will have to replace Justice Nunes and a lawyer, Justice Fischer.