Moraes's choice suggests a review of the criteria for nominations to the Supreme Court.

It's time for Brazil to discuss the rules for choosing ministers for its Supreme Court. Temer's nomination of his Minister of Justice, Alexandre de Moraes, to the STF (Supreme Federal Court) is so scandalous that it is already beginning to spark the necessary and always suppressed debate about the criteria currently in place. The argument defended by Moraes himself, and by many jurists, that those holding executive positions should not be nominated by the President of the Republic, as they would be ministers with partisan political interests, should already have been enshrined in law. The Association of Jurists of Rio Grande do Sul – Ajuris – is now publicly advocating for a two-year quarantine period before someone in Moraes's position can be nominated. Life tenure – which would allow Moraes to participate in decisions about the country's destiny for another 26 years, and his replacement by a temporary mandate, as occurs in other countries – is defended by many other jurists. Judge and member of the São Paulo Academy of Law Alfredo Attié Júnior goes further: he argues that the Constitution does not exactly contemplate the procedure currently followed, of nomination and appointment by the President of the Republic after approval by the Senate. "The nomination for the Supreme Court is the responsibility of the Brazilian people," he says. But the will of the Brazilian people has been set aside since the coup and will only be restored with the end of the government resulting from the coup.

In a recent article published on Frederico Vasconcelos' blog on the UOL portal, Attié Júnior states: “I'll get straight to the point: the Constitution does not say that the nomination is the president's prerogative. It says that ministers will be appointed by the President of the Republic, after the choice has been approved by an absolute majority of the Federal Senate” (sole paragraph of article 101 of the Constitution). In other words, as I interpreted and expressed in the cited articles: there are three steps or phases: nomination, approval, and appointment. The Senate approves, after questioning or hearings. The President appoints. But who nominates? There is an apparent gap, an omission in the Constitution. But this absence is only apparent. The Constitution opens with the explicit statement of the Democratic Principle: all power belongs to the people and is exercised in their name, through representation or through semi-direct democracy (popular consultation, popular decision: referendum, plebiscite, laws of popular initiative). Therefore, we would be automatically following a rule of nomination that is not explicitly stated in the Constitution. Nominations should come from the people, directly or through their representatives. But this is a change to be made in times of full democracy and free debate about its improvement. Perhaps in a Constituent Assembly that will thoroughly examine all recent violations of the Democratic Rule of Law.

What we have now is the most scandalous nomination of a Supreme Court Justice in the post-dictatorship era, regrettably applauded by ANPR, the national association of prosecutors. Even in this imperfect system of selection, it is conceivable that the President of the Republic would seek someone who, in addition to renowned knowledge and an unblemished reputation, has some affinity with his ideas. But what Temer is doing is appointing a proxy, who will be there as a reviewer of the Lava Jato cases, willing to act in favor of the PSDB members of his party and the allies of whoever nominated him. Moraes, as Minister of Justice, demonstrated his shamelessness in the use of his office on many occasions, and emblematically when he announced Palocci's arrest by the Federal Police, the very agency that claims to be independent. Or more recently, when he expanded the composition of the National Council for Penitentiary Policy to control the body, provoking the collective resignation of the remaining members.

In terms of reputation, nothing more needs to be said beyond two facts. He was a lawyer for Eduardo Cunha and for a van cooperative controlled by the PCC (First Command of the Capital).

Temer also anticipated that he would have no qualms about appointing his representative to the Supreme Court. "If I have to pay a high price for the nomination, I will pay it with Alexandre," he told allies last week. So, he knows what he's doing. He knew the criticism he would receive for the choice, but in his calculations, it would be of no importance given the enormous usefulness of choosing Moraes. When the choice of Supreme Court justices is measured by usefulness, it's time to review these criteria.