The decision for the (Supreme Federal Court) has an impact not only on the government (PT), but also on the court itself, according to an analysis by experts consulted by the Sheet.
If this is clearer for the Executive, given that it is the president who makes the nomination, in the case of the Supreme Court, the political context of wear and tear on the court and the (Advocacy General of the Union) contribute to this reading.
Not even to avoid rejection by the senators.
A more uncertain point, for these analysts, on the other hand, is the prognosis as to what this rejection means for filling the seat left vacant by minister Luís Roberto Barroso.
Given the rejection, the Lula government could send the nomination of a new name to the Senate and it would then be up to the House to decide on a new hearing. As shown by Sheethowever, the president of the Senate, Davi Alcolumbre (União Brasil-AP),. Likewise, there are Lula’s allies who defend .
Oscar Vilhena, who is a professor at FGV Direito SP and a columnist for Sheetthe result of the Senate vote should not be seen as a defeat for Messiah, but rather for the Executive, pointing out that his profile is similar to that of other names approved to join the court in recent history.
“It was a defeat for the government. It was also a signal to the Supreme Court”, he says, adding that this points to a willingness by these parliamentarians to stretch the rope in the clash between the Powers.
Vilhena also states that it is difficult to predict how Lula will react and, in this sense, recalls that, in the United States, then President Barack Obama, finding himself in a similar situation, was unable to nominate his nominee. “[Lula] Will you seek an appointment less associated with the government? A woman? A minister of higher courts? A widely recognized jurist?” Regardless, he highlights that, mainly, the president would need to bargain to achieve a majority.
There were 42 votes against Messiah in the plenary and 34 in favor — 41 were needed for him to be approved. In this year’s elections, Bolsonarism intends to use the clash with the court as an electoral flag for the Senate.
Lawyer Rafael Mafei, law professor at USP (University of São Paulo) and ESPM (Escola Superior de Propaganda e Marketing), assesses that, even though it was known about the difficulties that Messias’ nomination was facing among senators, the rejection was surprising, because it was not imagined that the government would forward the nomination without being sure of approval.
For Mafei, the decision is also a warning sign for the Supreme Court: “It shows that agendas that reach the court are capable of mobilizing a significant part of the Senate.”
According to him, the Supreme Court has always relied on good relations with senators as insurance for its protection. “Messiah’s rejection shows that this model is no longer capable of protecting the court as before.”
Tayara Lemos, law professor at UFJF (Federal University of Juiz de Fora), says that the episode not only affects the Supreme Court, but also demonstrates that the profile of its members has not only become the object of greater contestation, but above all of dispute.
“The Supreme Court, as a politically and legally influential institution, by depending on a repeatedly postponed legislative decision, is institutionally weakened and operates with one minister less, which compromises its stability and responsiveness.”
In her assessment, the president will have difficulty finding a viable name in such a tense political environment. As it is an election year, the most likely scenario, in his view, is that the government works to manage the cooling of tensions.
For Rubens Glezer, who is a professor at FGV Direito SP, the big loser with the result was the Supreme Court. Both because of the endorsement given by different ministers to Messiah’s nomination, but also because of what this means for the court.
“It is an opposition that has demonstrated its capacity for coordination and articulation to confront the Supreme Court”, citing as risks not only the control of other appointments to the court, but also requests for impeachment of court ministers and major institutional reforms.
According to Glezer, given the scenario of the Supreme Court’s deterioration in public opinion, including criticism of politicization, it was necessary to insist on a more political profile. He also argues that, if the requirement for the choice was political skills, Rodrigo Pacheco, the name defended by Alcolumbre, would better meet these requirements. He also states that the electoral and political cost for a new nomination has increased significantly.
Luiz Fernando Esteves, law professor at Insper, also sees the rejection as a defeat not only for Lula, but for the STF, both because of the sign that the Senate does not give significant weight to the support of ministers, and due to the serious institutional crisis that the court is going through.
“During the session, and in interviews after the result, some senators made a point of noting that this was a message for the Supreme Court,” he says.
For him, Lula has two paths that can be complementary, to seek to appoint a minister before 2027. One of them is negotiation with the senators, and the other is to bet on a name that is consolidated. “The Senate would have less reason to postpone the hearing or insist on rejection”, he says, adding the civil society movement for the appointment of a woman — an agenda that was ignored by the president.
