Senate resistance to nomination reflects government weakness

In the recent history of the Republic, no appointment by the President of the Republic to the Supreme Court has taken as long to be considered by the Senate Constitution and Justice Committee (CCJ) as the appointment of attorney Andre Mendonce, the former Minister of Justice. The former Union attorney general is waiting for exactly 79 days (counting up to this Tuesday, September 28) to be tried by a panel.

Among the current members of the STF, no one forced themselves to be interrogated for so long after their nomination for the presidency. Rosa Weber was the longest waiting for her candidacy for the Senate – 30 days after her nomination by Dilma Rousseff in November 2011. In the fastest possible case, Ricardo Lewandowski joined the CCJ just three days after Lula’s nomination in February 2006.

Even the first candidate, Jair Bolsonaro, then federal judge Cassio Nunez Márquez, went smoothly into the post left behind by Celso de Mello’s retirement. He was appointed 11 days before the STF Dean retired and sat down just 9 days after the chair was officially vacated.

However, the game has changed. The reasons are many, and they range from President Jair Bolsonaro’s own intention to put forward a name identified with the conservative agendas with which he presents himself to his electorate, to the clear strategic actions of CCJ President Senator Davi Alcolumbre (DEM-AP). who doesn’t want to recommend Mendonce. However, they all have one thing in common: they demonstrate a lack of political articulation in the current government.

Political games expert Brasilia noticed ConJur that despite Alcolumbre’s reluctance in recent weeks to elicit a reaction asking to speed up the processing of the name, this movement is not enough for a quick result.

The same source noted that the silence of the majority in the Senate over the delay of Alcolumbre is also a sign, albeit negative, about the chances of Mendonza’s nomination to the STF. “The lack of a Senate response is in itself a response,” he said.

two sides of the coin
For lawyer and professor Fundação Getúlio Vargas (FGV) Alvaro Palma de Jorge, the notion that the president appoints a name and the Senate immediately approves it is wrong.

While STF nominations are almost always approved (historical records that only at the beginning of Republican nominations were rejected by the Senate), this does not mean that there is no need for political negotiations around the chosen name, which, apparently, Bolsonaro. no.

Nominations have such a low level of rejection only because the political process of negotiations between the authorities before the final decision works as a guarantee that there will be no overt conflict. In the article, the lawyer noted that the process of filling a vacancy in the Supreme Court is not a unilateral act of the president of the republic.

The uncertainty surrounding Mendonza’s choice, Jorge said, reinforces the thesis that there is a constitutional counterbalance to the Senate’s power in selecting candidates for the Supreme Court. However, in the present case, it considers that the impasse caused by Alcolumbre’s political views “went beyond reason”, as STF itself had already expressed its discomfort with the situation, as the absence of one of its members was affecting the work of the Court. …

“These decisions do not have to be individual,” says the professor and lawyer. The Constitution, he said, establishes in a single paragraph of Article 101 that the selection of a candidate for the STF belongs to the Senate Collegium, although the Legislative Chamber has its own rituals, which currently impede the nomination of a presidential candidate. …

On the other hand, de Jorge notes that prior to the adoption of the 1988 Constitution, there was no history of debate or rejection of names. “Such data shows that Brazilian society and therefore its Senate were not interested in the Supreme Court and its ministers. This scenario began to change in 1988, ”he says.

In other words, prior to the adoption of the 1988 Constitution, there was no such acute concern about the names that will be included in the Court. It was the institutional structure set out in the Constitution that stimulated discussion of issues that had never reached the Supreme Court before.

political game
The history of the current STF ministers also shows that, while the Senate did not previously oppose the operational review of presidential candidates, the definition of the name was not always so flexible. The more the political situation deteriorated during the years of the PT rule, the longer negotiations took to fill the constitutional court.

Lula, for example, appointed three ministers to the STF, and it took him no more than 43 days to announce any of them. The name of Gilmar Mendes, the last representative appointed by Fernando Henrique Cardoso, was announced just a day after Neri da Silveira’s retirement.

The Dilma government extended the term. Louis Fuchs was nominated 187 days later; Rose Weber; after 95 days; Luis Roberto Barroso, just 188 days later; and it took Louis Edson Facin, record holder 257, for his name to be announced to PT.

after impeachmentMichel Temer appointed Alexandre de Moraes just 18 days after Theory Zawaski was killed in a plane crash.

If Mendonça was the correct name for the Court, then Davi Alcolumbre’s political game ultimately infected a portion of the electorate that the former minister could count on for his plenary approval after the CCJ hearings passed.

The former chairman of the Senate has lost the right to rule the House, but retains it to prevent hearings in Mendonce within a reasonable time. This, in addition to the political fatigue of the government, has already begun to influence the selection process of a new STF minister.

In the wake of the rejection of the former minister and former AGU, a sizable section of the Senate is considering a maneuver that could lead to the appointment of current Attorney General Augusto Aras, recently reappointed for a new term, with the result that Bolsonaro has withdrawn the name of your preferred referral.