Modelo brasileiro de composição do Supremo Tribunal Federal: análise crítica, desafios e perspectivas / The Brazilian Composition Model of the Federal Supreme Court: critical analysis, challenges and perspectives.

AUTOR(ES)

Fernando Dantas Motta Neustein

DATA DE PUBLICAÇÃO

2006

RESUMO

The scope of this dissertation is to critically analyze the Brazilian model of appointment of the members of the Federal Supreme Court and to point out the extent to which the authority of the Executive Branch to designate the members of the Supreme Court adversely affects the impartial practice of constitutional jurisdiction. The study starts with the classic discussion between Hans Kelsen and Carl Schmitt about who should ensure compliance with the Constitution, the importance of performing this task with independence and the natural tension existing between the Executive Branch and the Constitution. The paper then goes into a historical analysis of the moments of convergence and divergence between the Federal Supreme Court and the Executive Branch of Government, from the proclamation of the Republic to this day, indicating to what extent the Brazilian model for appointment of the members of the Federal Supreme Court actually hampers the impartial practice of constitutional jurisdiction. We then study the concepts that justify the participation of the Senate in the process of appointment of the Justices of the Federal Supreme Court to then critically analyze the manner in which the Senate has in practice questioned candidates for the position of Justice of the Federal Supreme Court. The next topic is the operation of the model of appointment of the members of the Supreme Court in the United States of America, the inspiration for the Brazilian model, pointing out the virtues and deficiencies of the foreign model. We conclude that even in the United States the influence of the Executive on the composition of the Supreme Court does affect its impartiality. We then give a synthesis of some models for appointment of the members of the European Constitutional Courts, which are alternatives to the United States and Brazilian model. The paper ends with a detailed criticism of the model now in effect in Brazil and makes suggestions for change in the current rules, which we consider inappropriate

ASSUNTO(S)

federal supreme court direito constitucional poder judiciário supremo tribunal federal brasil -- congresso brasil -- supremo tribunal federal judiciary

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