The minister’s retirement as of this Saturday (18) leaves the (Federal Supreme Court) without a presence, with one less judge in the court until the president () nominates a replacement and the Senate approves him.
This implies a plenary session with ten ministers and classes with four. Although it is recurrent, it can cause overload in offices and impasses in trials depending on the delay.
Without Barroso, the composition of the STF is with André Mendonça, , , , , , and , in addition to , president of the court, and , vice.
Luiz Fernando Esteves, law professor at Insper, remembers that, when a Supreme Court minister retires, he leaves behind a collection of cases. Delay in appointment may result in these cases being frozen while waiting for a successor.
Furthermore, until the magistrate is sworn in, new cases that arrive at the court will only be distributed to ministers already in office, which could also impose an additional burden on them.
A scenario like this was created between the appointment and the inauguration of a minister in the court. It took more than four months of dispute to get it scheduled, causing .
According to Esteves, another problem that may arise with the delay in the nomination is the creation of an “undesirable situation in which the entire nomination process may revolve around the vote that the chosen minister would give in the tiebreaker”.
President Lula told allies that he intends to nominate the head of the (Advocacia-Geral da União), to the STF.
There are mechanisms to avoid deadlocks in the event of a tie in trials.
In the case of groups, for example, the court rules provide that, if this occurs, the decision must be postponed until the vote of the absent minister is taken. If a vacancy remains open for more than a month, a minister from another class is called.
The exception to the rule are habeas corpus proceedings and appeals in criminal matters, with the exception of extraordinary appeals. In this case, the decision most favorable to the defendant prevails.
In the plenary, the rules say that, in judgments that require an absolute majority, that issue is considered to be judged against the request. In cases of habeas corpus and criminal appeals, the decision most favorable to the request continues to prevail.
Daniel Sarmento, professor of constitutional law at Uerj (State University of Rio de Janeiro), states that the impasse is more complex in constitutionality control actions, such as direct or declaratory ones.
This is because, by law, the constitutionality or unconstitutionality of a rule or provision is only recognized if at least six ministers vote in the same direction. Hence the complication.
In these situations, the solution is usually to suspend the judgment until further composition.
The regulations also authorize the president of the Supreme Court to cast a casting vote on plenary decisions when there is a tie resulting from the absence of a minister due to a vacancy lasting more than 30 days.
In practice, in addition, there are other measures that can be adopted, such as a request for review, which suspends the analysis and gives more time for the case to be examined.
