Of paramount interest! The ramifications of Lula's selection for Supreme Court Justice.

"You are free to make your choices, but you are a prisoner of the consequences." Pablo Neruda

With the first name chosen to join the Federal Supreme Court (STF) in the two vacancies opened this year, the race has begun for the nomination of the second name, which will be chosen in October 2023. Speculation is rife. Every day, new names emerge as potential candidates for the court. Some are legitimate contenders for the vacancy, while others enter the race with no chance of being chosen, but as a form of self-promotion.

The press has been pressuring President Lula to appoint a woman, preferably a black woman, to the position. They argue that this would fulfill two minority representation quotas at the same time. The president has been criticized for stating that he will make a personal choice and not one based on third-party recommendations or social representation criteria.

I fully understand President Lula's position. Let me explain. In a more stable Brazil, less affected by aggressive political cycles, the choice of Supreme Court justices would be based solely on the criteria established in the Federal Constitution, namely, renowned legal knowledge and an unblemished reputation, taking into account candidates who are more representative of society, as President Lula himself did in his previous terms. During that period, a black minister (the first in the court), a minister from the Northeast, and a female minister were appointed. Lula expanded the criteria for social representation of the ministers of the highest court.

Brazil has changed and the Supreme Court has become highly politicized

In a peaceful Brazil, the STF judges constitutional issues after political effects. It therefore decides on the legal effect of laws deemed unconstitutional. In Brazil today, the STF decides on cases that affect current policies, judging the constitutionality of measures recently approved by Congress. In other words, as the final arbiter, the STF has come to decide the political path of the country. This is due to the incompetence of the other branches of government in the duties assigned to them by the Federal Constitution. If Congress delays in formulating laws, the STF does so. If the executive branch is incompetent in executing laws and projects, the STF takes its place. Monocratic decisions, those issued by a single judge, have increased in number. Ministers have been exposed and publicly pressured to the point of receiving death threats. This has created social discord, with ministers being applauded or booed in the streets depending on 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 ministers of the Court by heart, but cannot even list the starting lineup of the Brazilian men's soccer team, which coincidentally consists of 11 players.

Those ministers who were less resilient succumbed to popular pressure and began to make decisions based on public opinion. They quickly changed their position if the winds of change blew in a different direction. Jurisprudence became mere rhetoric. Legal precedents were no longer valid as a form of argument, and laws began to be interpreted very flexibly. As a result, legal certainty went out the window. Decisions were no longer made 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 Operation Car Wash and relentlessly persecuted by the criminal organization in Curitiba. Lula was imprisoned for 580 days and publicly vilified by the press and the radical right, which would soon after arrive at the Planalto Palace.

The Supreme Court's vacillating position on the barbarities committed by Operation Car Wash had dramatic consequences in the political and economic spheres. If the Supreme Court had acted decisively at the time of Operation Car Wash's aberrations, Brazil would certainly be a different place today. Fortunately, the Supreme Court corrected its initial hesitant stance and put legality above popularity. However, the losses recorded during this period are significant, both in terms of the destruction of the political class's reputation and the devastation of companies and job creation.

The situation has changed, and the STF is largely responsible for this change. It acted firmly in defense of democracy and the rule of law in the face of serious threats, which materialized in the coup attempt on January 8 this year. However, there is no guarantee that this grim scenario is over. Operation Car Wash is still on life support and occasionally shows signs of life. Radical movements still flourish in the country, and political polarization is a reality. Therefore, with his return to the top of the political scene, elected by a very narrow margin, it is desirable that President Lula take great care in appointing his next ministers.

Although I believe that the memory of the courts will not allow the return of the barbarism practiced by the Curitiba republic, it is natural to be cautious, because, as the proverb says, "a dog bitten by a snake is afraid of sausage." I do not see, in President Lula's stance, the idea of appointing vassals, but rather appointing people whom he fully trusts in their firmness of legal positions and who will not bow to the frenzied cries of public opinion.

A strong Supreme Court is essential for the country's new era

The history of the STF is full of examples where the famous "gratitude for the nomination" does not last long. It is, therefore, the nominee's profile and their genuine belief in defending the Constitution that should be relied upon. I recognize that social representation will not be the first parameter in this new choice. Brazil needs a strong STF, and for that, it needs ministers with strong character and democratic and fair legal opinions. Ministers who will respect the constitutional precepts of broad defense, the rule of law, and individual rights and guarantees, whether they are men, women, white, black, brown, indigenous, Asian, homosexual, heterosexual, or LGBTQIS+.  

My late father, an important figure in the Brazilian judiciary, told me that during the military dictatorship, Supreme Court justices were chosen for their profound legal knowledge without any promise of favors, because high-ranking military officers believed that with the end of the dictatorship, they should be judged by the law, wisdom, and beliefs of the justices, and not by any favors owed to those who would no longer be in power. As a result, Brazil had excellent ministers at a time when politics did not influence the higher courts.

If Brazil manages to stabilize politically, future appointments to the Supreme Court should return to the priority track for greater representative equality in Brazilian society. For now, it is too much to demand that this criterion, although republican, but which generates no political capital, prevail over the certainty of the "death by natural causes, or death by murder" of the world's biggest judicial corruption scandal perpetrated by the Curitiba republic, directly responsible for the frontal attacks on the country's democratic regime. That is why I can understand President Lula's position, although I hope for greater social representation.