Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – The Curmudgeon will today focus on two closely related topics: (1) how Justices of the Brazilian Supreme Court (STF) are appointed; and (2) how they retire.

The Curmudgeon, aka Michael Royster.
The Curmudgeon, aka Michael Royster.

The appointment process differs from most Brazilian judicial appointments, in that the President is free to nominate whomever she wishes. For other appellate courts, the Constitution sets out a series of complicated rules granting entitlements to federal or state court judges, attorneys and public defenders. Don’t ask.

The Brazilian Constitution demands approval of STF nominees by the Senate. Since 1890, when STF was founded, out of 166 nominees, only one (in 1893) was ever rejected by the Senate. In all other cases, the Senate has anointed the appointee.

But, perhaps, not any more. Last week, Renan Calheiros, the President of the Senate, mutinously threatened to obstruct approval of any nominee for the vacancy left by retired Justice Joaquim Barbosa, unless Dilma cleared it with him first.

Moving from appointment to retirement, know first that the Constitution compels STF Justices to doff their togas and step down from the bench at age seventy.

But, perhaps, not any more. Last week, Eduardo Cunha, the President of the Chamber of Deputies, successfully resurrected a 2005 version of the “PEC da Bengala”, which increases the compulsory retirement age of Justices from 70 to 75.

A PEC, faithful readers will remember, is a Proposed Constitutional Amendment. A “bengala” is a cane, which symbolizes “sêniores” as those over age sixty (movies) or 65 (public transport) are referred to in vernacular Portuguese.

Given that most seventy-year-olds still have mens sana in corpore sano and can expect to continue for another five years, the PEC da Bengala should hardly generate much excitement — but it has serious political repercussions.

As it happens, no fewer than five of the ten sitting Justices will hit the seventy ceiling during Dilma’s second term of office. Under existing law, she would have the right to replace all five of those with people she finds more, shall we say, copacetic.

When passed, the PEC da Bengala will deprive Dilma of any future STF nominations — which is precisely why so many Congressional members have voted for it. “Take that!” they say, in mutinous reprisal for her failure to appoint them and their cronies to cushy sinecures.

And pass it will. The Senate already passed an identical version, so only one more vote in the Lower House need occur before PEC 457/2005 becomes the Supreme Law of the Land. Dilma cannot prevent this, because Constitutional Amendments are not subject to Presidential vetos.

The Curmudgeon supports the PEC da Bengala, and not just because he’s a “sênior”.

STF has original jurisdiction over criminal cases involving Senators and Deputies; it will soon start judging dozens of Petrolão cases, which will run on for years. If five Justices retire, another five must be appointed. No one can predict who they will be, nor whether the Senate will confirm their appointments.

Neither the Senate nor the STF are evil, but the Curmudgeon believes in the essence of the adage: “Better the evil you know than the evil you do not know.”

Michael Royster, aka THE CURMUDGEON, fetched up on Carioca shores some 37+ years ago and still loves them; his favorite spectator sport is politics, viewed from a “sênior” perspective.


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