–Vanice Regina Lírio do Valle, Estácio de Sá University
This past February 26th, the Brazilian Supreme Court was unable to rule in a relevant lawsuit: the votes were tied, which made the absence of the eleventh Justice an insuperable obstacle to come to a decision. The Brazilian Supreme Court, which should be composed of eleven Justices at the bench, has been lacking one of its members since July 2014, when Justice Joaquim Barbosa left the Court in an early retirement, credited to a serious spine condition. At the end of the session on February 26th, Justices Celso de Mello (the oldest member of the Court) and Marco Aurelio, referring to the President’s inertia in starting the nomination process, used adjectives like “abusive”, “unreasonable” and “disastrous”. What might be the reason why justices on the Brazilian Supreme Court are vocalizing their dissatisfaction in a public session, and in such strong terms?
The Brazilian Supreme Court’s Justices are selected among citizens with “well-known legal knowledge” who are over 35 years of age. The nomination process, as a classic checks and balances tool, starts with an indication from the President. That indication is submitted to the Senate, that usually hears from the candidate, and confirms (or not) the name. The Justice, once nominated, will serve in the Court for as long as he likes until he turns 70 years old, when according to the Brazilian Constitution, every public servant must enter mandatory retirement. In 2015, one more Justice in The Supreme Court will turn 70 – Celso de Mello – meaning that the President will have to face the nomination process again. In July 2016, one more mandatory retirement will happen – Justice Marco Aurélio turns 70 – and two more Justice will leave the Court for the same reason in 2018, the end of President Dilma’s term. If the President maintains the same slow rhythm in future appointments, the Court might even find itself at some moment with two missing Justices – which will be unsustainable. If a seven to eight months length to conclude a nomination becomes the default, Celso de Mello’s replacement might not happen when Marco Aurelio leaves the Court – since the period between the two retirements is smaller than seven months.
From the President’s perspective, what might be causing the delay? Brazil is (again) facing a huge scandal that will reach the Supreme Court, much like what happened in 2013 with the “Mensalão.” On that occasion, the Brazilian Supreme Court, in Penal Action 470 condemned members of the Worker’s Party, and even preeminent governmental agents, including former Ministers, for having received illegal bribes directed towards campaign financing. This time, the scandal involves ruinous business carried out by Petrobras, a governmental controlled oil company. Entrepreneurs are already in jail because of bribes, and they have been cutting deals with the Public Prosecutors to turn in the politicians and public servants involved in the illegal practice. This matter has already arrived at the docket of the Supreme Court, and Justice Theori Zavascki authorized investigations. The list of politicians under investigation contains the President of the Senate, Senator Renan Calheiros, and the President of the Chamber of Deputies, Deputy Eduardo Cunha. Thus, the nomination at issue is extremely sensitive.
It should be stressed that the Court decided many aspects of the previous Penal Action 470 by a very narrow majority. During the deliberation in Penal Action 470, two new Justices were nominated due to the previous retirement of two others – Justice Roberto Barroso and Justice Teori Zavascki. These two new votes changed the understanding of the Court about one of the crimes imputed to the former public agents condemned in “Mensalão”; the accusation was dismissed and the time to be served reduced. This is a strong indication that in the prospective lawsuit originating from the “Petrolão.” a single vote might be very important.
There is also another relevant issue. Today, out of the eleven Justices at the Brazilian Supreme Court, eight were nominated by Presidents affiliated to the Worker’s Party. With the coming retirement of Celso de Mello this year, by the end of 2015 – when a probable lawsuit originating from “Petrolão” arrives at the docket, if the nominations are complete, there will be ten justices chosen by the Worker’s Party, out of eleven. Even though there is no objective evidence of bias from these justices, it is obvious that the situation is uncomfortable, and brings much more attention and criticism to the names that are floated by the press and the legal community.
It is clear that in the present circumstances, a nomination considered to be very close to the Worker’s Party or the government itself may not be viable. This past March 4th, the President of the Senate Renan Calheiros, who was included in the list of politicians investigated by the order of the Supreme Court in the new “Petrolão” scandal, clearly stated that the Senate might refuse an unsuitable nomination. That would be the first time in the history of the Brazilian republic in which the Senate refused to confirm a Supreme Court nomination. Hence, the impasse.
One final piece of the puzzle: a constitutional amendment called the “Cane Amendment.” The idea is to amend the constitutional rule that requires mandatory retirement at the age of 70 – which will allow the Justices that are coming to that age to remain in Court until the end of President Dilma’s term. That proposition had already been presented to Congress a long time ago, but gained momentum recently. Last week, the Chamber of Congress held a first round vote on the proposal and it was approved, leaving another round to be held. That approval is being classified as the Congress’ reaction to the investigations in “Petrolão”, and as a sign that the Congress would prefer not to change the Supreme Court’s existing justices for new ones nominated by the Worker’s Party.
An analysis of this chain of events clearly illustrates many subjects already discussed by scholars. The evident influence of politics in judicial review, which is not entirely prevented by any kind of “institutional armoring,” is extremely notable. Even though in Brazil the judiciary and the Constitutional Court have a substantial amount of prerogatives oriented towards providing independence (tenure, administrative autonomy, reserved initiative in legislation concerning its own careers, internal organization and wages, etc.), the current situation demonstrates that an unlimited term might actually be harming the Court.
A second aspect that has already caught many scholars’ attention is the fact that the judicialization of mega-politics is a phenomenon that requires some sort of compliance or encouragement by other branches of government. The new political space that the Brazilian Supreme Court is enjoying comes with a price – for now, an embarrassing situation in which the President has clearly signaled that choosing a Justice for the Supreme Court is not a priority. Let us hope that in a very “heated” political market, the price for the judicialization of the mega politics does not become the currency of democracy.
Suggested citation: Vanice Regina Lírio do Valle, A Brewing Supreme Court Nomination Crisis in Brazil?, Int’l J. Const. L. Blog, Mar. 13, 2015, at: http://www.iconnectblog.com/2015/03/a-brewing-supreme-court-nomination-crisis-in-brazil/
 Friedman, Barry. “Politics of Judicial Review, The.” Tex. L. Rev. 84 (2005): 257.
 Hirschl, Ran. “The judicialization of mega-politics and the rise of political courts.” Annual Review of Political Science 11 (2008).