The Curmudgeon on the Litmus Test

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – In American politics, it is common for appointees to the Supreme Court to be asked about their position on certain divisive issues, such as abortion, affirmative action, “strict construction” etc. The “litmus test” is: are you pink or blue on this one particular question?

The most recent appointments to the STF (the Brazilian Supreme Court) have raised the question whether, in order to be appointed, the candidates must have passed a litmus test — i.e. will they do their utmost to avoid the prime “mensaleiros” (Zé Dirceu and Zé Genuino) going to jail.

The latest two STF appointees, Justices Barroso and Zavascki, have recently voted, on theoretically technical grounds, to retry the criminal conspiracy charge against the “mensaleiros”. Putting aside all the legal technicalities, what they (and four other STF Justices) in fact voted for was to ensure that the criminal Zés do not go to jail.

Dilma expected this when she appointed Justice Toffoli, a PT party hack who twice failed the qualifying examination for judges. But he couldn’t get the job done.

Enter Justice Barroso.

He is, by common consent, the most brilliant constitutional law scholar in Brazil. Also by common consent, his desire to become an STF Justice was even more overweening than that of Chief Justice Barbosa.

In exchange for his appointment, Barroso agreed to become, in effect, the lawyer for the Zés. He promised Dilma that if nominated, he would do all he could to get the two Zés off the hook and back into politics where they (according to Lula and Dilma) belong.

In his first speech as an STF Justice, he admitted he “felt sorry” for Zé Genuíno, as if that could possibly matter in a criminal case. Then he said there was only “corruption” in vague, unspecified terms. Of course Barroso officially “lamented” the corruption, but his point was that the PT mensaleiros were doing no worse than other politicians had always done, so… no real crime was committed.

What planet does he live on? Planet Litmus.

Who else lives there? Even the Curmudgeon is not quite sure. Justices Lewandowski and Zavascki certainly do, with at least one of the female Justices who voted against conviction of the Zés on the criminal conspiracy count. But, how do we deal with Justice Celso de Mello?

As the longest-serving Justice (23 years) he was entitled to vote last on the “embargos infringentes”. His vote decided the 6-5 result that will eventually free the criminal Zés from jail terms. Ironically, at the trial, Celso de Mello was the Justice most emphatic in his condemnation of the criminal conduct of the Zés.

He apparently believes, however, that even if the full STF decides a defendant is guilty of a crime, that defendant should have yet another decision by the full STF. Why? Because the STF internal rules say it is possible, and the STF must abide by its rules, come Hell or High Water.

Quoth the Curmudgeon: Get out your hip boots, folks, because High Water is coming. Protests will proliferate as soon as the STF gets around to freeing the Zés from jail terms. Which, thanks to Planet Litmus and an own goal by Celso de Mello, it will sooner or later do.

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Michael Royster, aka THE CURMUDGEON first saw Rio forty-plus years ago, fetched up on these shores exactly 36 years ago, still loves it, notwithstanding being a charter member of the most persecuted minority in (North) America today, the WASPs (google it!)(get over it!)