HIGH COURTS AND ECONOMIC GOVERNANCE IN ARGENTINA AND BRAZIL

Diana Kapiszewski January 2012

WEB APPENDICES

Kapiszewski ~ High Courts and Economic Governance ~ Web Appendices

Web Appendix 2.1 Argentine CSJN Annual Case Load Statistics, 1991-2010

Year Total % of Total Total % of Total Total % of Total Total % of Total Pre- Pre- Entered Entered Decided Decided in Course in Course at Existing Existing and/or Relating to Relating to at End End of Year Relating Relating to Pensions1 Reinitiated Pensions Pensions of Year2 to Pensions 1991 8,939 5,532 6,036 8,435 1992 8,435 6,546 5,804 9,177 1993 7,723 24,815 6,604 24,877 1994 24,900 36,723 5,393 56,329 1995 56,994 86% 16,910 63% 7,628 13% 66,875 89% 1996 66,875 89% 23,544 78% 9,443 33% 81,619 92% 1997 82,453 92% 9,811 43% 41,318 86% 55,626 88% 1998 55,638 88% 8,057 20% 54,043 89% 17,896 59% 1999 17,896 59% 13,818 16% 21,208 54% 15,842 24% 2000 17,488 47% 17,971 59% 15,544 57% 20,005 50% 2001 20,005 50% 14,631 48% 15,333 55% 19,373 44% 2002 19,373 44% 42,055 28% 36,526 22% 24,902 49% 2003 37,147 35% 31,470 55% 18,980 60% 49,637 37% 2004 46,109 40% 37,726 33% 20,963 62% 62,872 28% 2005 62,872 28% 36,354 14% 20,485 55% 78,741 15% 2006 63,905 15% 30,544 15% 12,934 27% 79,781 13% 2007 78,247 13% 28,093 10% 54,123 5% 46,696 23% 2008 46,505 23% 22,817 20% 22,900 17% 29,676 33% 2009 29,676 33% 14,306 25% 21,500 24% 16,533 27% 2010 16,886 27% 15,138 30% 13,637 26% 17,117 35%

Source: Oficina de Estadísticas del Poder Judicial de la Nación. Estadísticas - Poder Judicial de la Nación (tomos anuales). Buenos Aires, Argentina. For 2003: http://www.pjn.gov.ar/estadisticas/Libros/Estadi_03/PJUDN_03.htm For 2004: http://www.pjn.gov.ar/estadisticas/Libros/Estadi_04/PJUDN_04.htm For 2005: http://www.pjn.gov.ar/estadisticas/Libros/Estadi_05/PJUDN_05.htm For 2006: http://www.pjn.gov.ar/07_estadisticas/Libros/Estadi_06/CAPITULO%201.htm For 2007: http://www.pjn.gov.ar/07_estadisticas/Libros/Estadi_07/CAPITULO%201.htm For 2008: http://www.pjn.gov.ar/07_estadisticas/Libros/Estadi_08/CAPITULO%201.htm For 2009: http://www.pjn.gov.ar/07_estadisticas/Libros/Estadi_09/Corte_09.htm

For 2010: http://www.pjn.gov.ar/07_estadisticas/Libros/Estadi_10/Corte_10.htm Also, for 2006-2010: http://www.pjn.gov.ar/07_estadisticas/Trabajos_Especiales/Fallos/indicefallos.htm 1 These cases have to do with pensions and other retirement funds (social security). 2 Given the available data, it is impossible to determine why, for several years, (1) the “total in course at end of year” is not “total pre-existing” + “total entered/reinitiated” - “total decided” and (2) “total in course at end of year” does not match “total pre-existing” for the subsequent year.

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Web Appendix 2.2 Most-Used Mechanisms to Reach the Argentine CSJN Notes: All are mechanisms of concrete judicial review; all decisions have “inter partes” effects.

Mechanism Description Ordinary Appeal  Generally represent the smallest category of appeals. Recurso ordinario  Cases that fall within the CSJN’s ordinary appellate jurisdiction (i.e., those (RO) involving issues regulated by the constitution and the laws of the nation, treaties with foreign nations, maritime law; and cases in which the nation is a party and in which a foreign country or citizen is the defendant, per 1994 reform of Constitution, Articles 116 and 117) may be appealed to the Court using an RO.  In the late 1990s and early 2000s the number of ROs ballooned when a special “RO previsional” was established. Extraordinary  Used to appeal decisions on cases that seem to be outside the ordinary Appeal jurisdiction of the CSJN. Recurso  REs proceed when there is a federal or constitutional question, specifically, extraordinario when the interpretation of a federal norm is at stake, or a contradiction is (RE) alleged between the constitution and another federal or provincial act or norm (personal correspondence, constitutional scholar, 03 April 2007).  A potential appellant first presents an RE (explaining why his case is a federal or constitutional matter that should be considered by the CSJN) to the court that ruled against him for approval or denial. o If the federal appeals court (or provincial Supreme Court) grants his petition, his RE is raised to the CSJN and the previous court’s ruling is suspended until the CSJN decides the case; o If the federal appeals court (or provincial Supreme Court) denies his petition its own ruling is immediately executable; at that point the petitioner may file a direct appeal (see below) with the CSJN, requesting that it decide whether the previous court should have denied the petition. Direct Appeal  Presented directly before the CSJN when an appeals court or provincial Recurso de queja Supreme Court denies a party’s request for an RE.

(RQ)  Most of the appeals that arrive to the CSJN are of this type, although 80% of (also called RQs are rejected (SC-03). Recurso de hecho  More than 90% of RQs arrive to the CSJN oriented such that it can accept and [RH] and Recurso consider them in the category of sentencia arbitraria. directo)  RQs are not a request that the CSJN resolve the case at hand, but rather a request that it make a decision on whether the previous court should have denied the RE.  Filing an RQ with the CSJN does not suspend the previous court’s ruling (per the civil/commercial procedural code even after its 1990 reform [Law 23.774]).  If the CSJN denies the petition, the previous court’s ruling stands.  If the CSJN accepts the RQ: o It can rule that the previous court was correct in rejecting the RE (at which point the case is closed and the previous court’s ruling holds), or o It can overrule the previous court’s denial (i.e., rule that the previous court should not have rejected the RE) and accept the case; at this point the case is raised to the CSJN and the previous court’s ruling suspended.  The CSJN’s acceptance of an RQ does not guarantee that it will, in the end, rule for the appellant.

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Web Appendix 2.3 Most-Used Mechanisms to Reach the Brazilian STF

Mechanism Description Concrete review (i.e. requires citation of or connection to a specific case or controversy) Extraordinary  Analogue of the Argentine RE. Appeal  Can be used to appeal practically any lower court ruling on constitutional Recurso grounds. extraordinario (RE)  The court in the instance just prior to the STF acts as gatekeeper, admitting or denying the elevation of REs to the STF.  Judicial reform in 2004 (Constitutional Amendment No. 45) mandated that the appealing party in an RE must demonstrate the broad importance (repercussão geral) of the case in order for the STF to consider admitting the appeal.  Effects: Inter partes (for the case at hand). Direct Appeal  Filed directly with STF (though acts as an appeal). Agravo de  Analogue of the Argentine RQ. instrumento (AG)  If the court just prior to the STF rules not to allow an appeal to the STF via RE, the losing party may file an AG directly with the STF.  Judicial reform in 2004 (Constitutional Amendment No. 45) mandated that the appealing party in an AG must demonstrate the broad importance (repercussão geral) of the case in order for the STF to consider admitting the appeal.  Effects: Inter partes (for the case at hand). Injunction  Can come to the court in its original jurisdiction or on appeal. Mandado de  Created in the 1934 Constitution. segurança (MS)  Resembles the amparo in Mexico.  A “summary remedy” to challenge rights abuses by administrative authorities.  The 1988 Constitution created the mandado de segurança colectivo which enabled political parties represented in Congress, unions, business syndicates or associations in operation for more than a year to protect their collective rights.  Effects: Inter partes (for the case at hand). Writ of Injunction  Created in 1988 Constitution. Mandado de  Can come to the Court in its original jurisdiction or on appeal. injunção (MI)  Used to request that courts declare unconstitutional the failure of a public power to regulate, or implement a rule regulating, a constitutional precept when that failure prevents the full exercise of constitutional rights and liberties and the prerogatives inherent in nationality, sovereignty, and citizenship (Article 5, 1988 Constitution).  Such a declaration of unconstitutionality for omission does not oblige the legislature to fill the gap, but rather simply guarantees the immediate application of the constitutional precept in question, thus halting the constitutional violation (Vilhena Vieira 2002: 130-31).  Effect: Inter partes (for the case at hand). Abstract review (i.e. does not require citation of or connection to a specific case or controversy) Direct Act of  Most commonly used abstract review mechanism. Unconstitutionality  Renamed and standing expanded in 1988 Constitution. Ação direta de  Filed directly with STF. inconstitucionalidade  Per the 1988 Constitution (Article 103), the following can file an ADIn with the (ADIn) STF: the President; the Executive Committee of the Senate and Chamber of Deputies; State governors; Executive Committee of state legislatures; the Head

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of the Public Prosecutor’s Office (Procurador Geral da República, PGR); the Federal Council of the Bar Association; political parties with representation in the Senate and/or Chamber of Deputies; nationwide trade unions or professional associations. Law 9.868 (1999) gave the Governor and the Legislative Assembly of the Federal District the ability to file ADIns (and Constitutional Amendment No. 45 amended Article 103 to reflect these additions).  Allows plaintiffs to question the constitutionality of provisional measures and decrees issued by the executive, constitutional amendments and ordinary laws passed by federal or state legislatures, or administrative decrees issued by federal or state courts since 1988 (Taylor 2004: 166-69).  Plaintiffs may request a preliminary/summary decision on such cases. If the STF issues a temporary injunction against the questioned norm, the norm (or part of it) is temporarily suspended from that moment forward until the STF decides the case on the merits. Such injunctions have erga omnes effects, and serve to provisionally restore the effectiveness of the right revoked by the questioned norm (Rocha and Paulo 2003: 46-48; 92). The STF may delay years before issuing a final ruling.  Decision-making absent an injunction is expedited in ADIns, such that the Court often considers such cases while the political controversy that sparked them is still boiling (Taylor 2004: 112; 166-69).  The Attorney General (Advogado-Geral da União) defends the state in ADIns and cannot argue for the unconstitutionality of questioned norms (Rocha and Paulo 2003: 73-80).  Rulings against a norm in ADIns imply its revocation by the Constitution of 1988 (rather than its unconstitutionality).  Per Law 9.868 (1999) STF rulings on ADIns have erga omnes and retroactive effects; declarations of unconstitutionality mean the norm or the part declared unconstitutional is effectively (though may not actually be) struck from the legal books as of the day the norm was created; such rulings are binding on the STF and all other courts. o Per Article 102 of the 1988 Constitution as reformed in 2004, decisions on the merits in ADIns have erga omnes effects and are binding on all courts

and public administration in the federal, state, and municipal spheres. o Per Article 27 of Law 9.868, the STF may establish (with the agreement of two-thirds of its members) an alternate date of efficacy for its decision for reasons relating to juridical security or in exceptional social circumstances.  Decisions on ADINs cannot be appealed. Direct Act of  Created in the 1988 Constitution. Unconstitutionality  Filed directly with STF. by Omission  Standing is the same as for an ADIn. Ação direta de  Plaintiffs may not request a preliminary/summary decision on such cases. inconstitucionalidade  The abstract review counterpart of the Mandado de injunção (MI): used to por omissão question the constitutionality of legislative omissions (i.e., to allege that Congress’s or an agency’s failure to legislate or regulate certain constitutional clauses makes their content ineffective, and that those legislative or administrative failures are thus unconstitutional).  The objective of filing an ADIn for omission is to effectuate a constitutional provision or right that depends, for its application, on complementary legislation or regulation that has not yet been adopted.  A ruling for the plaintiff obliges the legislator or administrator to elaborate the

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missing norms (Rocha and Paolo 2003: 19, 61-65). While the 1988 Constitution stipulates that administrative organs must pass the required regulation within 30 days of the Court’s ruling, no time period is set for the legislature (Vilhena Vieira 2002: 130-131). The Constitution makes clear that under no circumstances should the STF seek to fill the void itself.  Used relatively infrequently. Declaratory Action  Created via Constitutional Amendment No. 3 (1993). of Constitutionality  Filed directly with STF. Ação declaratória de  Constitutional Amendment No. 3 indicated that only the President, the constitucionalidade Executive Committee of the Senate or of the Chamber of Deputies and the PGR (ADC) could file an ADC at the STF; Constitutional Amendment No. 45 of 2004 expanded standing to include all who can file an ADIn.  Allows political actors to request that the STF declare the constitutionality of a federal norm.  Law 9.868 (1999) established that plaintiffs may request a preliminary/summary decision on such cases; injunctions issued in an ADC are binding and require that judges and courts suspend judgments that involve the application of the norm in question until the STF has issued a final decision (Rocha and Paulo 2003: 46-48; 92).  STF decisions on ADCs have erga omnes effects and are binding on all other courts and the public administration at the federal, state, and municipal level since the creation of the mechanism in 1993 (confirmed by Constitutional Amendment No. 45 of 2004).  Decisions on ADCs cannot be appealed. Argumentation of  Filed directly with STF. Failure to Comply  Established in the 1988 Constitution, noting that standing would be determined with a Fundamental subsequently by law; Law 9.882 of 1999 indicates that standing to file an ADPF Precept would be the same as standing to file an ADIn. Argüição de  Plaintiffs may request a preliminary/summary decision in ADPFs; injunctions descumprimento de issued by the STF require judges/courts to suspend judgment on cases involving preceito fundamental the questioned norm until a final STF decision (Rocha and Paulo 2003: 95-98).

(ADPF)  Allows plaintiffs to question (or confirm) the constitutionality of federal, state, or municipal norms that cannot be attacked or defended using an ADIn or ADC (for instance, those established prior to 1988).  Allows for the definitive settling of controversies that, without resolution, would engender many court cases (thus threatening interested parties and juridical security) (Rocha and Paulo 2003: 95-98).  Used more often than the ADC but less often than the ADIn.  Law 9.882 (1999) established that STF decisions on ADCs have erga omnes effects and are binding on all other courts and the public administration at the federal, state, and municipal level. o Per Article 11 of Law 9.882 (1999), with the agreement of two-thirds of its members, the STF can establish an alternate date of efficacy for its decision, for reasons relating to juridical security or in exceptional social circumstances.  Decisions on ADPFs cannot be appealed.

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Web Appendix 2.4 Brazilian STF Annual Case Load Statistics, 1985-2010 Source: STF web site and research by Dr. Vilmar Nery Lourenço, Chefe de Gabinete, Ministra Presidenta Ellen Gracie in September 2007.

INDIVIDUAL CASES DISTRIBUTED INJUNCTIONS/DECISIONS BY THE STF

Year TOTAL TOTAL ADINs AGs + REs Distributed TOTAL TOTAL1 Final Final Final Cases Cases Distributed (% of Injunctions FINAL Decisions Decisions by a Decisions by Received Distributed (% of TOTAL Decisions en banc Chamber one Justice TOTAL distributed) distributed) 1985 18,206 17,935 17,798 1986 22,514 21,015 22,158 1987 20,430 18,788 20,122 1988 21,328 18,674 16,313 1989 14,721 6,622 17,432 1990 18,564 16,226 267 (1.6%) 13,245 (81.6%) 16,449 1991 18,438 17,567 232 (1.3%) 15,898 (90.5%) 14,366 1992 27,447 26,325 166 (0.6%) 24,712 (93.9%) 18,236 1993 24,377 23,525 159 (0.7%) 21,626 (91.9%) 21,737 1994 24,295 25,868 196 (0.8%) 23,683 (91.6%) 28,221 1995 27,743 25,385 207 (0.8%) 22,998 (90.6%) 34,125 1996 28,134 23,883 158 (0.7%) 21,568 (90.3%) 794 / 284 30,829 698 12,235 22,638 1997 36,490 34,289 203 (0.6%) 31,704 (92.5%) 617 / 165 39,944 648 15,786 24,142 1998 52,636 50,273 182 (0.4%) 46,763 (93.0%) 989 / 485 51,307 636 15,310 35,443 1999 68,369 54,437 185 (0.3%) 51,957 (95.4%) 535 / 262 56,307 550 12,118 44,255 2000 105,307 90,839 257 (0.3%) 88,432(97.4%) 598 / 253 86,138 456 10,715 75,218 2001 110,771 89,574 209 (0.2%) 87,193 (97.3%) 632 / 276 109,692 646 8,563 111,505 2002 160,453 87,313 204 (0.2%) 84,937 (97.3%) 443 / 157 83,097 955 10,673 84,395 2003 87,186 109,965 306 (0.3%) 106,997 (97.3%) 1,153 / 467 107,867 1,479 8,686 98,449 2004 83,667 69,171 285 (0.4%) 65,478 (94.7%) 1,470 / 885 101,690 584 10,557 91,278 2005 95,212 79,577 258 (0.3%) 74,174 (93.2%) 2,024 / 1,190 103,700 518 14, 617 89,056 2006 127,535 116,216 192 (0.2%) 110,716 (95.3%) 1,899 / 1,326 110,284 575 10,632 98,604 2007 119,324 112,938 158 (0.1%) 106,671 (94.4%) 159,522 2008 100,781 66,873 177 (0.3%) 59,314 (88.7%) 130,747 2009 84,369 42,729 173 (0.4%) 32,649 (76.4%) 121,316 2010 71,670 41,014 134 (0.3%) 31,536 (76.9%) 103,869

1 The data for the figures in the last four columns were collected from different sources, and the discrepancy between the TOTAL number of final decisions and the sum of the last three columns (which should match for the years the latter figures were available) cannot be reconciled.

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Web Appendix 3.1 Argentine CSJN Justices by Year and Appointer, 1983-2011

Sources: Larkins 1998a, 171-76, 183; Finkel 2001: 74, 82, 110-111; Chavez 2001: 59-98; Corte Supreme de Justicia de la Nación (Argentina) web site (http://www.csjn.gov.ar/); Helmke 2000: 129; Molinelli et al. 1999: 684, 705-706; Terra noticias, 26 December 2003

Year President Justice Justice Justice Justice Justice Justice Justice Justice Justice 1983 Alfonsín Carrió1 Caballero3 Belluscio4 Fayt5 Petracchi6 (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (PRES)2 1984 Alfonsín Carrió Caballero Belluscio Fayt Petracchi (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (PRES) 1985 Alfonsín Carrió7 Caballero Belluscio Fayt Petracchi (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (PRES until 19 (PRES after Apr.) / Bacqué8 19 Apr.) (Alfonsín) 1986 Alfonsín Bacqué Caballero Belluscio Fayt Petracchi (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (PRES) 1987 Alfonsín Bacqué Caballero Belluscio Fayt Petracchi (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (PRES) 1988 Alfonsín Bacqué Caballero Belluscio Fayt Petracchi (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (PRES)

1989 Alfonsín/ Bacqué Caballero9 Belluscio Fayt Petracchi Menem (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín) (Alfonsín)

1 Assumed December 23, 1983 2 (PRES) refers to the President of the Court. 3 Assumed December 23, 1983 4 Assumed December 23, 1983

5 Assumed December 23, 1983 6 Assumed December 23, 1983; Petracchi is from a different wing of the Peronist party than is Menem. 7 Resigned April 19, 1985; health reasons. 8 Assumed April 24, 1985 9 Resigned, October 3, 1989; pressured to resign by Menem

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(PRES to 3 (PRES after 3 Oct.) Oct.) /VACANT 1990 Menem Bacqué10 VACANT/ Cavagna Barra14 Levene15 Nazareno16 Belluscio Fayt Petracchi (Alfonsín) / Oyhanarte12 Martínez13 (Menem) (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) Moliné (Menem) (Menem) (PRES after (PRES until O’Connor11 26 Apr.) 26 Apr.) (Menem) 1991 Menem Moliné Oyhanarte17 Cavagna Barra Levene Nazareno Belluscio Fayt Petracchi O’Connor (Menem) / Martínez (Menem) (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) Boggiano18 (Menem) (PRES) (Menem) 1992 Menem Moliné Boggiano Cavagna Barra Levene Nazareno Belluscio Fayt Petracchi O’Connor (Menem) Martínez (Menem) (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) (Menem) (PRES) 1993 Menem Moliné Boggiano Cavagna Barra20 Levene Nazareno Belluscio Fayt Petracchi O’Connor (Menem) Martínez19 (Menem) / (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) (PRES after (Menem) / VACANT (PRES until (PROV. 23 Apr. until VACANT 23 Apr.) PRES after 21 21 Dec.) Dec.) 1994 Menem Moliné Boggiano VACANT/ VACANT/ Levene Nazareno Belluscio Fayt Petracchi O’Connor (Menem) Bossert21 López22 (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) (Menem) (Menem) (PROV. (PROV. PRES PRES 6 May to 6 May; to 17 Nov.) PRES after 17 Nov.) 1995 Menem Moliné Boggiano Bossert López Levene23 Nazareno Belluscio Fayt Petracchi

10 Resigned April 18, 1990; in protest of the passage of the Ley de Ampliación (just prior to his resignation) 11 Assumed August 6, 1990 12 Assumed April 25, 1990 13 Assumed April 25, 1990 14 Assumed April 25, 1990 15 Assumed April 25, 1990 16 Assumed April 25, 1990 17 Resigned April 30, 1991 18 Assumed June 11, 1991

19 Resigned December 21, 1993; under the agreement on constitutional reform. 20 Resigned December 20, 1993; under the agreement on constitutional reform. 21 Assumed March 29, 1994 22 Assumed March 29, 1994 23 Was to resign February 1994 under the agreement on constitutional reform; retired in November 1995 after he was cleared on an impeachment suit.

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O’Connor (Menem) (Menem) (Menem) (Menem) / (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) Vazquez24 (PRES) (Menem) 1996 Menem Moliné Boggiano Bossert López Vazquez Nazareno Belluscio Fayt Petracchi O’Connor (Menem) (Menem) (Menem) (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) (PRES) 1997 Menem Moliné Boggiano Bossert López Vazquez Nazareno Belluscio Fayt Petracchi O’Connor (Menem) (Menem) (Menem) (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) (PRES) 1998 Menem Moliné Boggiano Bossert López Vazquez Nazareno Belluscio Fayt Petracchi O’Connor (Menem) (Menem) (Menem) (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) (PRES) 1999 Menem/ Moliné Boggiano Bossert López Vazquez Nazareno Belluscio Fayt Petracchi De la Rúa O’Connor (Menem) (Menem) (Menem) (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) (PRES) 2000 De la Rúa Moliné Boggiano Bossert López Vazquez Nazareno Belluscio Fayt Petracchi O’Connor (Menem) (Menem) (Menem) (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) (PRES) 2001 De la Rúa / Moliné Boggiano Bossert López Vazquez Nazareno Belluscio Fayt Petracchi Puerta/ O’Connor (Menem) (Menem) (Menem) (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) Rodríguez (Menem) (PRES) Sáa 2002 Rodríguez Moliné Boggiano Bossert25 López Vazquez Nazareno Belluscio Fayt Petracchi Sáa/ O’Connor (Menem) (Menem) / (Menem) (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) Camacho/ (Menem) Maqueda26 (PRES) Duhalde (Duhalde)

2003 Duhalde/ Moliné Boggiano Maqueda López28 Vazquez Nazareno Belluscio Fayt Petracchi Kirchner O’Connor27 (Menem) (Duhalde) (Menem / (Menem) (Menem) (Alfonsín) (Alfonsín) (Alfonsín) (Menem) / VACANT (PRES until 27 (PRES after VACANT June)29 / 17 Nov.) Zaffaroni30 (Kirchner)

24 Assumed December 14, 1995 25 Resigned October 21, 2002, due to “moral tiredness” (El Tribuno digital, http://www.eltribuno.com.ar/nac2.htm)

26 Assumed December 30, 2002. 27 Dismissed by the Senate, December 21, 2003. 28 Resigned on October 23, 2003 when Congress announced it was going to investigate him; left post 01 December 2003. 29 Resigned on June 27, 2003 rather than face Congressional scrutiny when Congress announced it was going to investigate him. 30 Assumed October 31, 2003

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2004 Kirchner VACANT/ Boggiano Maqueda VACANT Vazquez32 Zaffaroni Belluscio Fayt Petracchi Highton31 (Menem) (Duhalde) (Menem) / (Kirchner) (Alfonsín) (Alfonsín) (Alfonsín) (Kirchner) VACANT / (PRES) Lorenzetti33 (Kirchner) 2005 Kirchner Highton Boggiano34 Maqueda VACANT / Lorenzetti Zaffaroni Belluscio36 Fayt Petracchi (Kirchner) (Menem) / (Duhalde) Argibay35 (Kirchner) (Kirchner) (Alfonsín) / (Alfonsín) (Alfonsín) VACANT (Kirchner) VACANT (PRES) 2006 Kirchner Highton VACANT Maqueda Argibay Lorenzetti Zaffaroni VACANT Fayt Petracchi (Kirchner) (Duhalde) (Kirchner) (Kirchner) (Kirchner) (Alfonsín) (Alfonsín) (PRES) 2007 Kirchner Highton Maqueda Argibay Lorenzetti Zaffaroni Fayt Petracchi (Kirchner) (Duhalde) (Kirchner) (Kirchner) (Kirchner) (Alfonsín) (Alfonsín) (PRES) 2008 Fernández de Highton Maqueda Argibay Lorenzetti Zaffaroni Fayt Petracchi Kirchner (Kirchner) (Duhalde) (Kirchner) (Kirchner) (Kirchner) (Alfonsín) (Alfonsín) (PRES.) 2009 Fernández de Highton Maqueda Argibay Lorenzetti Zaffaroni Fayt Petracchi Kirchner (Kirchner) (Duhalde) (Kirchner) (Kirchner) (Kirchner) (Alfonsín) (Alfonsín) (PRES.) 2010 Fernández de Highton Maqueda Argibay Lorenzetti Zaffaroni Fayt Petracchi Kirchner (Kirchner) (Duhalde) (Kirchner) (Kirchner) (Kirchner) (Alfonsín) (Alfonsín) (PRES.) 2011 Fernández de Highton Maqueda Argibay Lorenzetti Zaffaroni Fayt Petracchi Kirchner (Kirchner) (Duhalde) (Kirchner) (Kirchner) (Kirchner) (Alfonsín) (Alfonsín) (PRES.)

31 Assumed June 28, 2004. 32 Resigned on September 01, 2004 rather than face Congressional scrutiny.

33 Assumed December 22, 2004 34 Suspended by the Senate on June 22, 2005; dismissed by the Senate on September 28, 2005. 35 Confirmed by the Senate on July 07, 2004 but did not assume until February 03, 2005 because she had to complete work as a member of the International Criminal Tribunal at the Hague. 36 Retired September 01, 2005.

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Web Appendix 3.2 Backgrounds of Argentine CSJN Justices Appointed since the Transition to Democracy (Justices in December 2011 in bold)

Sources: as indicated; codes of the form “NP” followed by numbers refer to newspaper articles published in the Argentine newspaper La Nación between1984 and 2003 (all articles on file with the author); “CV” indicates information was drawn from the justice’s curriculum vitae.

Name and Law specialty Political background: significant Judicial background: significant positions Evidence of connection to appointing date positions held in federal held in the judiciary prior to appointment president/party of appointing president assumed/ government (Executive or stepped Legislature) prior to appointment down

PRESIDENT ALFONSIN’s APPOINTMENTS

Carrió Public law  General Director of Juridical  Substitute justice of the CSJN (NP 02-R-05)  Friend and personal lawyer of Alfonsín 23 Dec. Affairs in the Ministry of the  Member of the Inter-American Commission (Pellet Lastra 2001: 406) 1983/ Interior under the dictatorship for Human Rights (Organization of  Strong anti-Peronist (Pellet Lastra 19 April of Aramburu (NP 02-R-05) American States) (NP 02-R-05) 2001: 412) 1985  Sub-secretary in the Ministry of  Liberal progressive (Verbitsky 1993:

the Interior under the 20) dictatorship of Aramburu 1956- 57 (NP 02-R-05)

 Secretary of the Judicial Reform Commission in 1956 (Pellet Lastra 2001: 407)

Caballero Criminal law  Prosecutor in Córdoba’s criminal courts  “Man of the president,” “discretely” 23 Dec. (NP 02-R-05) (Pellet Lastra 2001: 407) active in the UCR (Pellet Lastra 2001: 1983/  Member of Córdoba’s Superior Tribunal of 407) 03 Oct. Justice  Firm anti-peronist (Pellet Lastra 2001: 1989 412)  Radical (non-alfonsinista) (Verbitsky 1993: 20)  Related to VP Victor Martínez (Nino 1996: 72)

Belluscio Civil law;  Clerk in the civil law courts (1957-65)  Radical (no alfonsinista) (Verbitsky 23 Dec. family law (Pellet Lastra 2001: 407) 1993: 20) 1983/  Federal judge (civil and commercial courts)  Firm anti-peronist (Pellet Lastra 2001: 01 Sept. (1965-74) (Pellet Lastra 2001: 407) 412)

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2005  Judge on a Federal Appeals Court (Civil) (1974-78) (Pellet Lastra 2001: 407)

Fayt Constitutional  Substitute justice on the CSJN (NP 02-R-  Politically leaned “social democrat”; 23 Dec. law 05; Pellet Lastra 2001: 408) gave Tribunal political plurality (Pellet 1983 Lastra 2001: 408)  Strong anti-peronist (Pellet Lastra 2001: 412)  Had campaigned for provincial governor as a socialist; had said in writing that peronism was “a form of authoritarianism” (Verbitsky 1993: 20)

Petracchi Public law  Clerk in a federal civil and commercial  Recognized Peronist, but not in 23 Dec. (constitutional/ court (Pellet Lastra 2001 : 408) Menem’s circle (NP 01-R-372) 1983 administrative)  Auxiliary lawyer in the Federal  Father was a Peronista and held several Prosecutor’s Office (CV) important positions (Verbitsky 1993:  Clerk in the Federal Prosecutor’s Office 20) (Pellet Lastra 2001: 408)  Primary lawyer in the Federal Prosecutor’s Office (CV)  Prosecutor on the Administrative Federal Appeals Court (Pellet Lastra 2001: 408)

Bacqué Philosophy of  Technical Director of the Stock  Clerk on the CSJN (NP 01-R-362)  Intellectual profile similar to that of 24 April law Exchange, 1969-1982 (NP 01- Carrió (Verbitsky 1993: 20) 1985/ R-362)  Politically independent 18 April  High-ranking Central Bank 1990 official, 1983-1985 (NP 01-R- 362)

PRESIDENT MENEM’s APPOINTMENTS

Moliné Commercial  1960-63, “Relator” in the Federal Civil  Served as President of the Argentine O’Connor Appeals Court (NP 01-R-406) Tennis Association; his sisters were 06 August married to close collaborators of 1990/ President Menem (Chavez 2004: 457) 21 Dec.  Married to the daughter of the head of 2003 an internal intelligence agency (NP 02- R-737)

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Oyhanarte Constitutional  Led the Economic and Social  Former justice (1958-) (NP 01-R-359)  Long familial history in Radical Party 25 April law Council convened by Dictator (NP 01-R-359) 1990/ Alejandro Lanusse and the  Long time friend of President Menem 30 April commission that reformed the (NP 01-R-372; Chavez 2004: 457) 1991 constitution by decree  Authored government’s response to a

(Verbitsky 1993: 36) CSJN statement rejecting Court

 Juridical assistant to the enlargement in 1990 (Larkins 1998: president under Alfonsín 428) (Verbitsky 1993: 36)  Minister of Justice (NP 01-R- 372)  Head of the Constitutional Reform Commission (1989) (NP 01-R-68)

Cavagna Tax law, fiscal  Member, Judicial Modernizing  VP and President of the Supreme Court of  Recognized Peronist (NP 01-R-372) Martínez procedure, Commission created under the Province of Buenos Aires (NP 01-R-  Close friend of Eduardo Menem; 25 April constitutional Alfonsín (Verbitsky 1993: 55) 359) member of the president’s inner circle; 1990/ law declared, “I am and always will be a 21 Dec. Peronist” upon being informed of 1993 nomination to the CSJN (Larkins 1998: 428)

 Menem submitted nomination to the

Senate only one day after announcing that the Court would be expanded from five to nine members; the two opposition Senators on the Appointment Committee were absent the day the appointment was confirmed; the full Senate approved the appointment secretly, in seven minutes, with no opposition Senators present (Chavez 2004: 457)

Barra Administrative  Minister of Public Works (July-  Recognized Peronist (NP 01-R- 372) 25 April Law December 1989) (CV)  Response to his appointment: “My only 1990/ two bosses are Perón and Menem;”  Minister of the Interior 20 Dec. (December 1989 – April 1990). suggested that he “could not have an 1993 interpretation which is contrary to the (CV) government” (Larkins 1998: 428-29)

 Menem submitted nomination to the Senate only one day after announcing

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that the Court would be expanded from five to nine members; the two opposition Senators on the Appointment Committee were absent the day the appointment was confirmed; the full Senate approved the appointment secretly, in seven minutes, with no opposition Senators present (Chavez 2004: 457)

Levene Criminal  Advisor to Menem’s  Climbed the ranks of the criminal justice  Recognized Peronist; strong links to 25 April (procedural) Undersecretary of Justice courts – intern, clerk, judge, appellate court Menem (NP 01-R-372) 1990/ law (Chavez 2004: 458) judge (NP 02-R-733, NP 02-R-735)  Menem submitted nomination to the 14 Dec.  Wrote the criminal codes of La Pampa, El Senate only one day after announcing 1995 Chaco, Nequén, Chubut, Formosa, that the Court would be expanded from Misiones, Santa Cruz, and Tucumán (all five to nine members; the two clones of the Córodoba code of 1939 (NP opposition Senators on the 02-R-735; Verbitsky 1993: 53) Appointment Committee were absent

 Supreme Court justice from August 1975 to the day the appointment was March 1976 (under President Estela Perón) confirmed; the full Senate approved the (NP 02-R-735) appointment secretly, in seven minutes, with no opposition Senators present (Chavez 2004: 457)

Nazareno Unclear  Justice on the Supreme Tribunal of La Rioja  Ties to Eduardo Menem (NP 01-R- 25 April (appointed by Menem when he was 361) 1990/ governor) (NP 01-R-356, NP 01-R-359;  Ties to Menem (NP 01-R-372) 27 June Chavez 2004: 458)  Former partner in the Menems’ law 2003 firm in La Rioja (Pellet Lastra 2001:

473)

 Menem submitted nomination to the Senate only one day after announcing that the Court would be expanded from five to nine members; the two opposition Senators on the Appointment Committee were absent the day the appointment was confirmed; the full Senate approved the

appointment secretly, in seven minutes, with no opposition Senators present (Chavez 2004: 457)

Boggiano Private  Advisor to Menem (Larkins  Clerk of the CSJN (1973-75) (Verbitsky  Friend of Justice Barra’s

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11 June international 1998; 428) 1993: 63; La Nación, 29 Sept. 2005) 1991/ law  Advisor in the Ministry of  Named first instance judge (commercial) in 2 Jun/Sept. Foreign Affairs (NP 01-R-468) 1975 (court #13) (Verbitsky 1993: 63) 28 2005  Named appeals court judge (commercial) in 1981 (Verbitsky 1993: 67; La Nación, 29 Sept. 2005)  Represented Argentina in various important international bodies (UN, etc.) (Verbitsky 1993: 67, NP 01-R-467; 468)

Bossert Civil/family  Prestigious jurist, author of various laws  Strong links with both the Peronist and 29 Mar. law (NP 02-R-480) Radical parties (required by the bi- 1994/  Judge on the National Civil Appeals Court partisan bargain that produced his 21 Oct. (in Buenos Aires) from 1984 to 1994) (NP nomination) (NP 02-R-435) 2002 02-R-435)

López Labor law  Judge on the Labor Appeals Court of the  Nomination agreed to by the Radical 29 Mar. Federal Capital from 1992 to 1994 (NP 02- Party as part of the bargain that led to 1994/ R-480) constitutional reform (NP 01-R-1728 23 Oct. bis) 2003  Sponsored by Carlos Corach, whom Cavallo accused of pulling the strings of the judiciary (NP 01-R-1759 bis)

Vázquez Administrative  Chief of a division of state-run  Chief prosecutor for the municipality of  1968 – active in the Peronist party, 14 Dec. law Argentine Railroads from Buenos Aires, 1970 (NP 02-R-761) occupying various national-level 1995/ 1969-1970 (NP 02-R-761)  Civil and commercial judge (first instance) leadership posts (NP 02-R-738, NP 02- 01 Sept.  Appointed member of the (court #33), 1984 (NP 02-R-761) R-761) 2004 Planning Board for Argentine  Judge of the Federal Administrative  Appointment process expedited by Railroads in 1972 (NP 02-R- Appeals Court, 1989 (NP 02-R-761) Menem and marked by irregularities 761) (Chavez 2004: 458)  Manager of Juridical Affairs  Openly admitted to being a friend of for Argentine Railroads from the president, and explained his 1973 to 1976 (NP 02-R-761) conception of the separation of powers  Judicial advisor to the in this way: “the functions are three, Municipal Institute for Social but the power is one” (quoted in Miller Works in early 1980s (NP 02- 2000: 398) R-739)

PRES. DUHALDE’s APPOINTMENTS

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Maqueda Labor law/  Deputy of the Province of  Advisor and Member of the Administration  Peronist, but not directly linked to 20 Dec. constitutional Córdoba (1987-1991) (CV) and President of the Accusal Commission Duhalde; was approved by the Senate 2002 law (CV)  Federal Deputy (1991-99) (CV) of the Consejo de la Magistratura (1998- in an unusually fast process; close ties

 Member of the national 1999) (CV) to the Peronist José Manuel de la Sota

constitutional convention (NP 01-R-1368b, NP 01-R-1410)

committee 1994 (CV)  Federal Senator 2001-2003 (and VP of the Senate) (CV)

PRES. KIRCHNER’s APPOINTMENTS

Zaffaroni Criminal law  Member of the national  National judge (criminal) (first instance, in  In line ideologically with Kirchner, but 31 Oct. constitutional convention the federal capital) (1975-76) (CV) no close ties; FREPASO background, 2003 committee (1994) (CV)  National judge (criminal sentencing) (first but never officially affiliated with the  State Deputy (Buenos Aires) instance, in the federal capital) (1976-84) party (NP 01-R-1640) (1997-2000) (CV) (CV)  Head of the National Institute  Appeals Court Judge (criminal) (in the Against Discrimination federal capital) (1984-1990) (CV) (INADI) under De la Rua (NP 01-R-1639)

Argibay Criminal law  National judge (criminal sentencing) on  Ideological profile similar to 07 July first instance court in Buenos Aires (1984- Kirchner’s (La Nación, 18 Feb. 2004, 2004-03 1988) (CV) “Proponen para la Corte a Elena Feb. 2005  Appeals Court Judge (criminal) in Buenos Highton de Nolasco”) Aires) (1988-1993) (CV)

 Appeals Court judge (oral criminal tribunal) in Buenos Aires (1993-2002) (CV)  Judge “ad litem” on the International Criminal Tribunal for the Former Yugoslavia (2001-2005) (CV)

Highton Civil law  Defensora oficial (1973-79) (La nación, 18  Not active in any party (NP 01-R- 28 June Feb. 2004) 1727); no link with the government 2004  Special judge in civil and commercial (NP 01-R-1731); not ideologically (1979-1988) (La Nación, 18 Feb. 2004) aligned with the government (La  Federal judge (first instance, civil) (1988- Nación, 18 February 2004) 1994 (La Nación, 18 Feb. 2004)  Appeals Court Judge (civil) in Buenos Aires (1994-2004) (CV)

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Lorenzetti Civil law  Not active in any party (La Nación, 14 22 Dec. October 2005, “Kirchner define su 2004 cuarto candidato para la Corte Suprema”)  Appointed to the Court as a result of connections with the wife of the sitting president, Senator Cristina Fernández de Kirchner (La Nación, 17 Oct. 2004, “De una corte Menemista a una Corte setentista?”)

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Web Appendix 3.3 Presidency and Distribution of Seats in the Argentine Senate and Chamber of Deputies (1983-2005)

Table A. Presidential Mandate, 1983-2005

President Year of Election Winning Percentage Alfonsín 1983 51.8% Menem 1989 47.5% Menem 1995 49.94% De la Rua 1999 48.37% Duhalde 2001 NA; appointed by Congress Kirchner 2003 22.2% (first round)

Source: Political Database of the Americas (http://pdba.georgetown.edu/Elecdata/Argentina/argentina.html)

Table B. Presidency and Distribution of Seats in the Argentine Senate, 1983-2005

1983-19891 1989-1992 1992-1995 1995-1998 1998-2001 2001-20032 2003-2005 Menem/PJ President/ Duhalde/PJ Alfonsín/UCR Menem/PJ Menem/PJ Menem/PJ De la Rúa/ Kirchner/PJ Party Kirchner/PJ Alianza Partido Justicialista (PJ) 45.7% 54.4/54.2%3 62.5% 55.7% 55.7% 57.1% 57.8% Unión Civil Radical 39.1% 30.4/29.2% 22.9% 28.6% 31.4% 32.9% 28.2% (UCR)/Alianza Provincial parties 15.2% 15.2/16.7% 14.6% 15.7% 14.3% 8.6% 9.9% All others 0.0% 0.0/0.0% 0.0% 0.0% 0.0% 1.4% 4.2

Note: Between 1983 and 1992 there were 46 Senate seats and from 1992 through 1995 there were 48. Senators were elected by provincial legislators. Each province was represented by two senators who held nine-year terms. Elections were held every three years to replace a third of the Senate. In 1995 the number of Senators increased to 72. In 2001 the entire Senate was directly elected. Since that year, Senators have held office for six years, with a third of the seats up for election every two years. 1 Elections were held in 1986 for one third of the Senate. The same legislatures that elected the senators in 1983 (with either the same, or 1/2 the same composition) elected the new third of the Senate, along the same partisan lines. Thus the senators changed, but the partisan distribution did not.

2 The entire Senate was elected in 2001. 3 The Senate increased by two seats in early 1992 when the Senators from the newly created province of Tierra del Fuego took office.

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Table C. Presidency and Distribution of Seats in the Argentine Chamber of Deputies, 1983-2005

1983-1985 1985-1987 1987-1989 1989-1991 1991-1993 1993-1995 1995-1997 1997-1999 1999-2001 2001-2003 2003-2005 De la Rúa/ Duhalde/ Alianza PJ President/ Alfonsín/ Alfonsín/ Alfonsín/ Menem/ Menem/ Menem/ Menem/ Menem/ De la Rúa/ Duhalde/ Kirchner/ Party UCR UCR UCR PJ PJ PJ PJ PJ Alianza PJ PJ Kirchner/ PJ Partido 43.7% 37.8% 38.6% 47.2% 45.1% 49.4% 51.0% 46.3% 38.5% 47.1% 54.9% Justicialista (PJ) Unión Civil Radical UCR)/ 50.8% 50.8% 44.9% 35.4% 32.7% 32.7% 26.5% 25.7% 46.3% 25.3% 17.9% Alianza Frente País 8.6% 14.8% 2.7% 1.2% Solidario Unión del Centro 0.8% 1.2% 2.8% 4.3% 3.9% 1.6% 0.8% 0.4% 0.4% 0.4% .4% Democrático All others 4.7% 10.2% 13.8% 13.0% 18.3% 16.3% 13.3% 12.9% 14.8% 25.4% 25.6%

Note: There were 254 seats in the Chamber from 1983 through 1991, and 257 thereafter. Half the National Assembly is elected every two years to a four-year term.

Source: Jones 2007.

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Web Appendix 3.4 Chronology of Public Opinion regarding the Argentine Judiciary and Supreme Court (CSJN), 1983-2005 All translations done by the author.

Year Source Type of Data Valence of poll/ data event 1983- Carballo de Cilley 1987: 68-73 (quoted Public “Depending on the survey, between 45% and 55% of the public typically + 1986 in Prillaman 2000: 119) opinion expressed confidence in the country’s legal system and approval ratings for the courts were higher than those for the police, military, unions, and businessmen, and on par with scores for Congress and the educational system.”

1984 La Nación, Jan. 23, 2001, “Sólo el 18 por Public Gallup poll +/- ciento de los argentinos confía en la opinion  “57% of Argentines have a lot or some trust in the judiciary; 42% Justicia;” 03 Nov. 1996, “Los jueces have little or no trust” federales están en la mira”

1987 La Nación, 26 July 1987, “Anormal tarea Opinion of FORES strongly criticizes the work of the high court - de la Corte Suprema” NGO 1987 La Nación, 27 Sept. 1987, “Justicia para Editorial Criticism of access to justice in Argentina - todos”

1989 Dalla Via 1994: 21, 24; Buscaglia, Public “By the end of Alfonsín’s term… approval ratings for the courts dipped - Dakolias, Ratliff 1995: 5 (quoted in opinion near 30%, with 80% describing the courts as inefficient and nearly half Prillaman 2000: 119) describing the courts as inaccessible.”

1990/ La Nación, 15 Mar. 1992, “Uno de cada Editorial Poll by Consultora Demoskopía Instituto para la Investigación del - 1991 dos argentinos no confía en la justicia” including Mercado y Estudios Políticos (2,500 people in the Federal Capital and La Nación, 26 Mar. 1992, “Situación de results of a the larger metropolitan area) la justicia nacional” public  “… the increase in the number of justices on the Supreme Court opinion did not improve its image”

survey  “In March 1990, only 20% of those surveyed believed that the expanded Supreme Court was going to act according to law while another 56% thought there was too much political influence over the Court and that it was dependent on the executive”  “54% believed that there is a better way to name judges”

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1991 La Nación, 17 Nov. 1996, “Sigue en baja Public Poll by Graciela Römer y Asociados (November) - la confianza de la sociedad en la justicia” opinion  70% of the public expressed little or no confidence in the judiciary and 22% expressed some or a lot of confidence in the judiciary. 1991 La Nación, 23 Jan. 2001, “Sólo el 18 por Public Gallup poll - ciento de los argentinos confía en la opinion  “26% of Argentines have a lot or some trust in the judiciary; 75% Justicia;” 03 Nov. 1996, “Los jueces have little or no trust.” federales están en la mira”

1992 La Nación, 25 Mar. 1992, “Preocupan las Statement “The Bar Association of the city of Buenos Aires expresses its deepest - críticas al Poder Judicial” by bar concern regarding the unprecedented public questioning of national association courts, including the Supreme Court.” 1992 La Nación, 17 Nov. 1996, “Sigue en baja Public Poll by Graciela Römer y Asociados (April) - la confianza de la sociedad en la justicia” opinion  73% of the public expressed little or no trust in the judiciary and 24% expressed some or a lot of trust in the judiciary.

1992 La Nación, 28 Aug. 1992, “La crisis de Editorials, Strongly worded criticisms of juridical insecurity in Argentina in - la Justicia;” 13 Sept. 1992, “La seguridad articles general, and of the Supreme Court in particular jurídica como bien común;” 14 Sept. 1992, “La Constitución y la Seguridad Jurídica;” 27 Sept. 1992, “El tema de la seguridad jurídica en la Argentina;” 27 Sept. 1992, “Opinión de juristas acerca de la cuestión” 1992 La Nación, 26 Oct. 1992, “La gente no Public Poll by Centro de Estudios Unión para la Nueva Mayoría - cree que la Corte Suprema Sea opinion  63.3% of residents of Buenos Aires polled believed that the Independiente” and La Nación, 11 Oct. Supreme Court is not independent of the Executive; 15.5% 1999, “La imagen por el piso” indicated that they believed that it is independent, and 21.2% indicated they did not know  70.5% of those polled believed that there was no juridical security in Argentina; 14.4% believed there was 1992 La Nación, 11 Nov. 1992, “Preocupación Statement “We hope that the Supreme Court will declare this abuse (the +/- por la seguridad jurídica” by bar president’s repeated issuance of Decrees of Necessity and Urgency) association illegal, thereby reinforcing the division of powers that is the very essence of the republican system. In this way the high court will prove inaccurate its ‘adhesion’ to the executive (of which public opinion appears to have become convinced), which is affecting its prestige.”

1992/ La Nación, 30 Nov. 1992, “Para Headlines, Repeated insistence by high government officials that the Supreme + 1993 Maiorano, La Corte es independiente;” statements Court is independent. 03 June 1993, “Menem reiteró que el by gov’t.

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Poder Judicial es independiente;” 09 Oct. officials 1993, “Bauzá dijo que el alto tribunal no es prenda de negociación alguna”

1992/ Verbistky 1993: 15 Public “Public opinion regarding the Supreme Court began to be measured in - 1993 opinion polls, with almost 80% of responses attributing to the Court a high degree of corruption, and a lack of independence from the executive.”

1993 La Nación, 23 Mar. 1993, “La Corte Editorial Defense of the Supreme Court + Suprema, hoy” 1993 La Nación, 16 Apr. 1993, “El Poder Editorial Decries the “deterioration” of the judiciary - Judicial en deterioro” 1993 Verbitsky 1993: 17 Event “Posters reading, ‘Corruption in the Judicial Palace’ in white letters over - a black background cover thousands of walls in center-city Buenos Aires beginning in August 1993” (a reference to the Supreme Court) 1993 La Nación, 11 Oct. 1993, “Predomina Public Poll by Centro de Estudios Unión para la Nueva Mayoría - una imagen negativa de la Justicia” opinion  “47.1% of those surveyed in the Capital and metropolitan area had a negative image of the judiciary, and 13.3% had a positive image.”  Also suggests, “The episodes that unleashed a literal firestorm in the heart of the Supreme Court shortly before the elections likely also severely harmed the judiciary’s image, leading to the current crisis.” 1993 La Nación, 03 Dec. 1993, “Para la gente Street Survey of people on the street done by La Nación - el tribunal no tiene arreglo;” La Nación, survey  “For the majority of those interviewed… the issue centered on the 03 Dec. 1993, “Cuestionamientos de los lack of credibility of [the Supreme Court’s] acts, and thus a lack of futuros abogados” trust in the rulings it has handed down in its current composition.”  “The whole Supreme Court has to go… it’s shameless.”  Law students comment about what should be done about the Supreme Court

1993 La Nación, 10 Nov. 1993, “Habría Report by A report written by the Arthur Andersen Consulting firm reflected “a - desorden en el poder judicial” Arthur portrait of significant disorder in the current administration of the Andersen judiciary.” 1993 La Nación, 17 Nov. 1996, “Sigue en baja Public Poll by Graciela Römer y Asociados (December) - la confianza de la sociedad en la opinion  “83% of the public expressed little or no confidence in the judiciary

justicia;” Somos, 12 Dec. 1993, p. 10, 14, and 10% expressed some or a lot of confidence in the judiciary.” “Una Corte y una quebrada” (quoted in  “Only 5% believed the judiciary was independent, while 74% Miller 2000: fn 12); Pellet Lastra 2001: suspected that judges are partial” 26  “The Supreme Court was the institution that most frustrated the public in comparison with Congress, the police, the public schools, the Catholic Church, and other cultural and political institutions”

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1993 La Maga del 23 de marzo de 1994 Public Unión para la Nueva Mayoría (various polls during 1993) - (quoted in Pellet Lastra 2001: 28) opinion  “Only 13% on average had a positive view of the judiciary, a level of credibility 5 points below that which it had in April 1992 (when polls revealed that 17.2% of people believed in judges).”

1994 La Nación, 30 Jan. 1994, “El Poder Editorial “By general consensus, the last year has been the blackest in the history - Judicial hoy” of the Argentine judiciary. The growing popular discredit and the consequent demoralization of the good judges are symptoms that confirm this assertion. The Supreme Court has been the most visible scenario of the difficult and negative year of 1993, in particular the comedy of errors around the election of the new president, the scandal (still not clarified) regarding the purchasing of furniture, and, above all, the episode (still unresolved and until now not even investigated) of the ‘disappearing ruling.’” 1994 La Nación, 15 Apr. 1994, “Preocupa al Event “Bar association articulates concern regarding public opinion of the - Colegio de Abogados el deterioro del judiciary and the lack of reaction to that poor image by the authorities.” Poder Judicial” 1994 La Nación, 04 July 1994, “Más del 80% Public Poll by Centro de Estudios Unión para la Nueva Mayoría (1,000 - de la gente cree que la Justicia no es opinion respondents in the Federal Capital and the larger metropolitan area) eficaz”  “81.4% of those polled… believe the justice system is ineffective in combating corruption…. Only 13% trust the judiciary.” 1994 La Nación, 13 July 1994, “Proyectan Event Official declaration of a “judicial emergency” and the need for a radical - declarar la emergencia judicial” and restructuring to increase efficiency additional related articles through July and August 1994 La Nación, 17 Nov. 1996, “Sigue en baja Public Poll by Graciela Römer y Asociados (August) - la confianza de la sociedad en la justicia” opinion  “82% of the public expressed little or no confidence in the judiciary and 14% expressed some or a lot of confidence in the judiciary.” 1994 Larkins 1998: 429 Public Gallup poll - opinion  “72 percent of respondents said that judges were too “influenced by the government” and 69 percent believed that the decisions of the Supreme Court were either ‘extremely politicized’ or ‘very politicized’” 1994 Estudio de Opinión Acerca de la Public Gallup poll: - Administración de Justicia, CEJURA, opinion  “…only 13 percent of the public expressed confidence in the

1994 (quoted in Prillaman 2000: 120-21) administration of justice, and only 16% had confidence in judges. Half of all respondents described the state of justice as “bad” or “very bad,” 80% could not identify a single positive aspect of the court system, 88% said the country did not provide equal access for everyone, 82% believed courts did little or nothing to protect the

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rights of the “common citizen,” and 84% described the courts as “inefficient.”

1995 Latinobarómetro survey of Latin Public Latinobarómetro survey - American Countries opinion  Survey of 10,000 citizens in eight Latin American countries  Trust in the judiciary o Argentina: 5.8% of people had a lot of trust in the judiciary, and 27.8% had some trust (seventh in terms of “a lot of trust”) o Brazil: 18.2% of people had a lot of trust in the judiciary, and 20.6% had some trust (second in terms of “a lot of trust”) 1995 La Nación, 23 Jan. 2001, “Sólo el 18 por Public Gallup poll - ciento de los argentinos confía en la opinion  “26% of Argentines have a lot or some trust in the judiciary; 74% Justicia;” 03 Nov. 1996, “Los jueces have little or no trust.” federales están en la mira” 1995 La Nación, 17 Nov. 1996, “Sigue en baja Public Poll by Graciela Römer y Asociados (June) - la confianza de la sociedad en la justicia” opinion  76% of the public expressed little or no confidence in the judiciary and 22% expressed some or a lot of confidence in the judiciary. 1995 Clarín, 29 Sept. 1995, p. 24, “La calle Public Poll by Graciela Römer y Asociados - dice…” (quoted in Miller 2000: fn 12) opinion  “…the Supreme Court enjoyed the confidence of only 23% of the Argentine population compared with 62% for the public schools, 57% for the Catholic Church, 36% for the Armed Forces, 28% for the police, and 26% for Congress” 1995 La Nación, 14 Dec. 1995, “El Public Survey of people on the street by La Nación (359 respondents) - amiguismo, el peor enemigo de la opinion  Reaction to the appointment of Justice Vázquez: “77% of those democracia” interviewed opposed his nomination…10% expressed support.” 1995 La Nación, 17 Nov. 1996, “Sigue en baja Public Poll by Graciela Römer y Asociados (December) - la confianza de la sociedad en la justicia” opinion  79% of the public expressed little or no confidence in the judiciary and 17% expressed some or a lot of confidence in the judiciary. 1995 La Nación, 03 Dec. 1995, “Por una Editorial “These well-known episodes… resulted in the strong deterioration, over - Justicia independiente” the years, of the image of the Supreme Court and sewed suspicions about its independence from pressures from the political branches. Popular opinion has begun to believe that the Court is not impermeable to interference from the other branches. More than once, we have referred in this column to the absolute necessity of correcting this

institutional distortion so that the Court can return to being a prestigious and independent organ on which the life, security, and honor of Argentines can rest trustfully.”

1996 Latinobarómetro survey of Latin Public Latinobarómetro survey - American Countries opinion  Survey of 20,000 people in 17 Latin American countries (plus Spain)

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 Trust in the judiciary o Argentina, 3.9% had a lot of trust in the judiciary, and 19.2% had some trust; 15th in terms of “a lot of trust” o Brazil: 12.0% had a lot of trust in the judiciary, and 29.3% had some trust; fourth in terms of “a lot of trust”  Institutions/actors in which people believe o Argentina: 8.3% indicated “judges”(in 10th place) o Brazil: 18.5% indicated “judges” (in fourth place) 1996 La Nación, 03 Nov. 1996, “Los jueces Public Gallup poll (1400 respondents, carried out in the Federal Capital, - federales están en la mira” opinion Buenos Aires, Córdoba, Mendoza, Rosario, Tucumán in August)  “11% of Argentines have a lot or some trust in the judiciary; 89% have little or no trust” 1996 La Nación, 27 Oct. 1996, “La Justicia, en Large “The Debate/Credibility Crisis in the Judiciary” - la picota” exposé by “Argentine history has no other eras in which judges have played such three an important role and, at the same time, suffered so much discredit as jurists today. Political interference… and at times venal behavior have become more frequent.” The jurists conclude that “there is no quick, easy solution.” 1996 Pellet Lastra 2001: 27 Public Gallup poll (1,032 respondents, carried out in October) - opinion  66% of those surveyed believed that the judiciary was inefficient and 39% believed that it was corrupt, with a total of 86% having a negative view of the judiciary, a record-high. 1996 La Nación, 17 Nov. 1996, “Sigue en baja Public Poll by Graciela Römer y Asociados - la confianza de la sociedad en la justicia” opinion  82% of the public expressed little or no confidence in the judiciary and Larkins 1998: 429 and 16% expressed some or a lot of confidence in the judiciary (March).  88% of the public expressed little or no confidence in the judiciary and 11% expressed some or a lot of confidence in the judiciary (May).  85% of the public expressed little or no confidence in the judiciary and 13% expressed some or a lot of confidence in the judiciary (October).  “64% of Argentines considered the Supreme Court either “very corrupt” or “corrupt” and 47% of respondents thought it was ‘obsolete’”

1996 La Nación, 15 Dec. 1996, “La gente Public Poll by Centro de Estudios Unión para la Nueva Mayoría (912 - desconfía de la Justicia” opinion respondents in the Federal Capital and the larger metropolitan area) (A headline from the same newspaper,  Question, “How would you feel if you initiated a case in the “”Menem politizó a la Corte y a la judiciary or was part of a judicial proceeding?” 70% of respondents Justicia”) and La Nación, 11 Oct. 1999, said they would have little trust; 16% said they would have some

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“La imagen por el piso” trust; 14% said they didn’t know.  Question, “How would you rate the judicial system?” 69% responded “very bad,” and 2% responded very good.”

1997 Latinobarómetro survey of Latin Public Latinobarómetro survey +/- American Countries opinion  Survey of 20,000 people in 17 Latin American countries (plus Spain)  Percentage of people who mentioned courts as very important for the country o Argentina: 66.6% (in third place) o Brazil: 55.6% (in eighth place)  Trust in the judiciary o Argentina: 4.3% had a lot of trust in the judiciary, and 16.2% had some trust; 17th in terms of “a lot of trust” o Brazil: 21.4% had a lot of trust in the judiciary, and 22.4% had some trust; 2nd in terms of “a lot of trust” 1997 La Nación, 27 Apr. 1997, “La Iglesia Event The Church officially expresses the need to create an independent +/- pide una justicia independiente” judiciary 1997 La Nación, 02 May 1997, “Estrategias Event La Nación sponsors a forum to discuss the crisis of the judiciary and - para superar la crisis que atraviesa la how to address it. Justicia” 1997 La Nación, 18 May 1997, “Pactos y Headline “Menem’s ‘addicted’ justices’ increasing lack of prestige” - peleas políticas en una Corte afín al “Public opinion perceives that the Supreme Court is subject to a fierce Gobierno” and unconcealed control by the executive and its behavior is one of the biggest factors that led the judiciary to its current situation of lack of prestige.” 1997 La Nación, 11 Oct. 1999, “La imagen por Public Poll by Centro de Estudios Unión para la Nueva Mayoría - el piso” opinion  “Image of the judiciary” – 63% responded, “negative,” and 6% responded “positive” 1997 Unpublished report, “Confianza en la Public Poll by Graciela Römer y Asociados - Policía y la Justicia” (quoted in Miller opinion  “92% of the public expressed little or no confidence in the 2000: 372) judiciary” 1997 La Nación (Revista), 21 Sept. 1997, p. Public Poll conducted by law students - 40, “Justicia, un reclamo de muchos opinion  “93% of the law students and lawyers surveyed regarded the años” (quoted in Miller 2000: fn 15) Supreme Court as completely or largely lacking in independence,

with only 2% regarding it as largely independent.”  Note: This issue of the magazine, dedicated to the judiciary and with the headline, “Another year without justice,” was included with the Sunday newspaper. 1997 La Nación, 20 Oct. 1997, “Ausentismo Research Editorial outlining the results of a research project carried out by La - en la Corte y el Congreso” carried out Nación regarding how many weekly meetings to sign opinions Supreme

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by La Court justices had missed; one justice had missed nine such meetings Nación between February and October; others had missed almost as many. 1997 La Nación, 27 Oct. 1997, “La Alianza Event In the wake of Congressional elections, the opposition proposed a packet +/- propondrá una oxigenación del Poder of initiatives including the placement of “some independent jurist” on Judicial” the Supreme Court 1997 La Nación, 12 Dec. 1997, “Otro hecho Headlines “Another scandalous act in the Supreme Court” - escandaloso en la Corte” “The Supreme Court under suspicion” La Nación, 13 Dec. 1997, “La Corte bajo “A Supreme Court plagued by scandals” sospecha” La Nación, 22 Dec. 1997, “Una Corte rozada de escándalos”

1998 Latinobarómetro survey of Latin Public Latinobarómetro survey - American Countries opinion  Survey of 18,000 people in 17 Latin American countries  Trust in the judiciary o Argentina: 5.4% had a lot of trust in the judiciary, and 14.2% had some trust; 12th in terms of “a lot of trust” o Brazil: 16.5.% had a lot of trust in the judiciary, and 24.8% had some trust; second in terms of “a lot of trust” 1998 La Nación, 08 Jan. 1998, “Acusan a la Event A lower court judge sends a scathing letter to the president of the -- Corte del despresitigio de la Justicia” Supreme Court accusing the Court of weakening the prestige of the judiciary 1998 La Nación, 11 Oct. 1999, “La imagen Public Poll by Centro de Estudios Unión para la Nueva Mayoría por el piso” opinion  Question, “What is the arena in which it is most effective to combat corruption?” 31% responded “the judiciary,” and 48% responded “the media.” 1998 La Nación, 17 Apr. 1998, “Que la Corte Editorial Editorial discussing the great degree of criticism the Supreme Court has - vuelva a su función esencial” suffered over recent years and how it might return to performing the function for which it was designed. 1998 Miller 2000: 371-72 Event The opposition, rather than trusting the Supreme Court to challenge - Menem’s attempt at a third presidency (in a case it had before it), threatened a popular referendum in order to stop it. 1998 La Nación, 28 June 1998, “Buscan Event (and The Menem camp seeks reforms to improve the Supreme Court’s +/- mejorar la imagen de la Corte” and La front-page image, allegedly so that a ruling in favor of Menem being able to run for Nación, 30 June 1998, “La imagen de la headline) a third presidency would have some legitimacy Corte”

1999 La Nación, 08 Aug. 1999, “La mala Series of Editorial/articles discussing the judiciary’s negative image, judges’ - imagen de la Justicia;”La Nación, 29 editorials/ negative image (including figures on the number of requests for Sept. 1999, “La mala imagen de los articles impeachment of judges) and what is to be done; including specific

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jueces;” La Nación, 11 Oct. 1999, “En el (run again discussion of the negative image of the Supreme Court and interviews banquillo de los acusados” and in January with constitutional scholars in which they explain how the Court “has “Haciendo la Corte al gobierno de turno” 2000 for not been an actor in the democratic process” emphasis) 1999 Pellet Lastra 2001: 29 Public Survey by Enrique Zuleta Puceiro (3,200 respondents in 32 cities - opinion throughout the country carried out in July 1999)  The judiciary has the worst public image of any of the three state powers, 57.3% of those consulted judged as “bad” or “very bad” the functioning of the justice system, while 51.2% judged Congress as “bad” or “very bad” and 50.3% judged the Executive as “bad” or “very bad.” 1999 La Nación, 23 Jan. 2001, “Sólo el 18 por Public Gallup poll - ciento de los argentinos confía en la opinion  “Index of trust in the judiciary: 21%” Justicia”

2000 Latinobarómetro survey of Latin Public Latinobarómetro survey - American Countries opinion  Survey of 18,000 people in 17 Latin American countries  Trust in the judiciary o Argentina: 7.1% had a lot of trust in the judiciary, and 20.5% had some trust; 10th in terms of “a lot of trust” o Brazil: 12.0% had a lot of trust in the judiciary, and 23.4% had some trust; third in terms of “a lot of trust”  Indicated “judiciary” as first response when asked what institutions have the most power o Argentina: 4.0% (ninth highest response rate) o Brazil: 14.5% (highest response rate)  Believe that everyone has equal access to justice o Argentina: 11.7% (16th highest response rate) o Brazil: 11.0% (lowest response rate) 2000 La Nación, 18 Mar. 2000, “Justicia: Headline Article suggesting that the judiciary gained some independence under + menos sobresaltos y afirmación de la President de la Rúa independencia” 2000 La Nación, 18 June 2000, “Qué hacer Eight-Day Series of articles appearing during a week discussing eight proposals +/- para que mejore la Justicia” and “Hay Exposé submitted by lawyers, judges, and journalists for making the judiciary que rescatar la Justicia;” 19 June 2000, more agile, independent, and efficacious; one day focuses specifically on “Una barrera para que los peores no the Supreme Court lleguen a ser jueces;” 20 June 2000, “Cuando no todos son iguales ante la ley;” 21 June 2000, “Los magistrados que hacen la diferencia;” 22 June 2000,

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“La delicada misión de custodiar la Constitución;” 23 June 2000, “Las provincias que dan el ejemplo;” 24 June 2000, “Una pelea inútil: jueces v. periodistas;” 25 June 2000, “Soluciones nacidas de la propia Justicia” 2000 La Nación, 18 June 2000, “Hay que Public Gallup poll - rescatar la Justicia” opinion  “Index of trust in the judiciary: 18%” 2000 La Nación, 20 June 2000, “Cuando no Public Survey by Inter-American Development Bank - todos son iguales ante la ley” opinion  Suggests almost 80% of Argentines do not trust the judiciary, the largest lack-of-trust percentage among the 18 Latin American countries in which the survey was conducted 2000 La Nación, 06 Aug. 2000, “Reformar la Article One in a series of articles about the “urgent mission” of reforming the +/- Justicia, misión urgente” judiciary 2000 La Nación, 17 Dec. 2000, “Sanear la Article Outlines the deteriorated image of the judiciary and how to “heal” it - Justicia: tarea prioritaria”

2001 Latinobarómetro survey of Latin Public Latinobarómetro survey - American Countries opinion  Survey of 18,000 people in 17 Latin American countries  Trust in the judiciary o Argentina: 5.2% had a lot of trust in the judiciary, and 16.5% had some trust; 10th in terms of “a lot of trust” o Brazil: 18.9.% had a lot of trust in the judiciary, and 21.3% had some trust; first in terms of “a lot of trust”  Indicated “judiciary” as first answer when asked about government institutions that suffered from corruption o Argentina: 8.7% (third highest response rate) o Brazil: 2.0% (12th highest response rate)  Indicated “judiciary” as first response when asked what institutions have the most power o Argentina: 4.1% (14th highest response rate) o Brazil: 20.2% (highest response rate) 2001 La Nación, 23 Jan. 2001, “Sólo el 18 por Public Gallup poll - ciento de los argentinos confía en la opinion  “Only 18% of Argentines have trust in the judiciary” Justicia”  “The lowest percentage since 1984…”  “In 16 years, the public image of judges or prosecutors fell by 68.42%”

2002 Latinobarómetro survey of Latin Public Latinobarómetro survey - American Countries opinion  Survey of 18,500 people in 17 Latin American countries

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 Trust in the judiciary o Argentina: 0.9% had a lot of trust in the judiciary, and 7.8% had some trust; 17th in terms of “a lot of trust” o Brazil: 12.4% had a lot of trust in the judiciary, and 20.1% had some trust; third in terms of “a lot of trust” Dec. La Nación, 29 Dec. 2001, “Cacerolazo Event On the afternoon of 28 December 2001, 500 angry Argentines gather in - 2001 – frente a los tribunales;” Jan. 2002, “La front of the building that houses the Supreme Court beating pots and Feb. Corte de las cacerolas;” Jan. 2002, chanting for the resignation of the entire Court with pamphlets and 2002 “Más protestas contra el alto tribunal;” banners reading “Enough, let the Court resign;” “Get out, corrupt (see also NP 01-R-268, NP 01-R-287, Supreme Court;” “Argentines: we already threw out Cavallo y De la NP 01-R-288, NP 01-R-163, NP 01-R- Rúa, now it’s the Court’s turn;” the protest would be the first of many 164, NP 01-R-200) against the Supreme Court, many including the participation of thousands of Argentines. 2002 La Nación, (NP 01-R-170) Feb. 2002, Article Review of the post-transition history (characterized as “scandalous”) of - “Un tribunal signado por el escándalo” the Supreme Court, in the context of a ruling against the interest of the government 2002 La Nación, (NP 01-R-191) Feb. 2002, Events  In February, Congress announced it will seek to impeach the entire - “El Congreso decidió enjuiciar a todos Supreme Court and shortly thereafter voted unanimously to open los miembros de la Corte;” (NP 01-R- impeachment hearings against all justices of the Court. 201) Feb. 2002, “Aprobaron por  Newspapers from early February through mid-October 2002 (when unanimidad abrir el juicio político a la the impeachment initiative finally drew to an unsuccessful close) Corte;” (NP 01-R-1261) Oct. 2002, were dominated by the details of how the hearings and defenses “Diputados decide la suerte de la Corte;” played out. La Nación, 22 Dec. 2002, “El plan de  Eventually the charges filed against the justices totaled as follows: Duhalde para frenar la Corte” Petracchi (12), Belluscio (22), Fayt (23), Moliné O’Connor (40), Nazareno (44), Vázquez (29), Bossert (9), López (36), Boggiano (35).  When it appeared that the Court would hand down a significant ruling against the government’s economic policy in late 2002, President Duhalde resurrected calls for the impeachment of several justices, again to no avail. 2002 La Nación, 09 Oct. 2002, “La mayoría de Public Poll by Catterberg y Asociados (550 people in the Federal Capital, - la gente quiere que prospere el juicio opinion Greater Buenos Aires, Córdoba, Rosario, Gran Mendoza and Gran político a la Corte” Tucumán in early October as the Peronist party was trying to wind down the impeachment process)  Question, “Are you IN FAVOR of the Chamber of Deputies ENDING the process of impeaching the Supreme Court?” o No = 81%; Yes = 8%; Didn’t answer/don’t know = 11%  Question, “Independent of what the Chamber of Deputies does, do you think the members of the Court should resign?

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o January 2002: Yes = 76%; No = 14%; Didn’t answer/don’t know = 10% o October 2002: Yes = 80%; No = 6%; It depends = 10%; Didn’t answer/don’t know = 4%

2003 Latinobarómetro survey of Latin Public Latinobarómetro survey - American Countries opinion  Survey of 18,500 people in 17 Latin American countries  Percent that responded “judges” when asked in whom they believed o Brazil: 25.8% (first) o Argentina: 5.6% (14th)  Trust in the judiciary o Brazil: 12.7% had a lot of trust in the judiciary, and 30.1% had some trust; first in terms of “a lot of trust” o Argentina: 1.9% had a lot of trust in the judiciary, and 14.3% had some trust; 12th in terms of “a lot of trust”  Degree to which the ethical and moral standards of judges has improved o Brazil: 7.6% believed had improved a lot, 40.4% believed had improved some; first in terms of “improved a lot” o Argentina: 0.6% believed had improved a lot, 6.7% believed had improved some; 17th in terms of “improved a lot”  Percent that mentioned courts as very important institutions o Brazil: 60.1% (third) o Argentina: 55.6% (fifth)  Agreement with statement “judicial systems punishes those who are guilty” o Brazil: 24.0% strongly agree, 1.4% agree (first in terms of “strongly agree”) o Argentina: 1.4% strongly agree; 14.6% agree (17th in terms of “strongly agree”)  Agreement with statement “justice takes a while, but it arrives” o Brazil: 25.4% strongly agree, 28.1% agree (first in terms of “strongly agree”) o Argentina: 4.7% strongly agree; 28.8% agree (12th in terms of “strongly agree”) 2003 La Nación, 23 May 2003, “Beliz Public Poll conducted by La Nación (3,388 citizens) - previlegiará la lucha anti-corrupción” opinion  Question, “Do you believe the new government will be able to change the Supreme Court and improve the functioning of the judiciary? o Yes, totally = 22.85%; Yes, partially = 38.46%; No = 35.68%; Doesn’t know/answer = 3.01%

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o Results indicate that 61.31% believed that the incoming government would change the Supreme Court in some way. 2003 La Nación, 02 June 2003, “Moderación Public Poll conducted by La Nación (7,200 citizens) - oficial por la Corte” opinion  Question, “What do you think the government or the Congress should do with respect to the Supreme Court? o Remove it completely = 62.7%; Reduce the number of Justices = 14.09%; Move forward with the removal/resignation of Justices = 12.38%; Leave it like it is = 9.82%; Don’t care = 1.01% o Results indicate that more than 90% of the people believed that at least some of the Justices on the Court should be removed. 2003 La Nación, 02 June 2003, “El 83% de la Public Poll conducted by Ricardo Rouvier y Asociados (622 phone - gente quiere renuncias en el tribunal” opinion interviews [quota system] in the Federal Capital and the Greater Metropolitan area, May 26-30)  54.2% of those surveyed wanted the entire Supreme Court to resign  28.9% said that some Justices should resign  3.8% believed that no Justice should be removed  13.1% preferred not to voice an opinion  Comment of survey firm: “… the high rejection of the high court should not be interpreted as explicit support for the policies of Kirchner’s government… When Fernando de la Rúa assumed the presidency in 1999, we did a similar survey and the results were approximately the same. Something similar occurred in another survey we did around the end of de la Rúa’s government. This result has less to do with Kirchner’s popularity than with the Supreme Court’s loss of prestige.” 2003 La Nación, 02 June 2003, “Analizan un Event Kirchner meets with the leaders of human rights organizations and - plebiscito sobre la Corte” discusses the possibility of calling a national plebiscite to gauge public support for the removal of the entire Supreme Court 2003 La Nación, 05 June 2003, “Kirchner Public Poll conducted by La Nación (3,806 citizens) - pidió remociones en la Corte” opinion  Question, “Do you agree with holding a plebiscite regarding the replacement of the Supreme Court? o Yes = 68,08%; No = 29,8%; Don’t care = 2.12% 2003 La Nación, 06 June 2003, “Se profundiza Public Poll conducted by La Nación (3,806 citizens) - la crisis interna de la Corte Suprema” opinion  Question (asked with reference to a speech by the president in which

he unveiled a plan to force the resignation of at least two justices), “What do you think of the President’s message regarding the Supreme Court? o President should have been more severe = 11.44%; It was right = 59.06; President stepped beyond institutional

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boundaries = 28.09%; Don’t care = 1.42% 2003 La Nación, 07 June 2003, “Hay nuevas Public Poll conducted by La Nación (3,433 citizens) - causas contra Nazareno” opinion  Question, “Is the President’s call for the removal of Justices from the Supreme Court an invasion of the functions of other branches of government? o No = 27.85%; I don’t know, but in this case it’s justified = 38.86%; No = 27.85% 2003 La Nación, 07 June 2003, “El 82% de la Public Poll conducted by OPSM (1100 surveyed in 65 localities throughout - gente aprueba el juicio al presidente de la opinion the country) Corte”  92% of those polled believe changes in the Supreme Court are necessary; 2.9% do not believe they are necessary  5.3% believe that the current process for selecting Justices should be retained  34.2% believe impeaching the president, and another justice, of the Supreme Court is a very good idea; 47.9% believe it is a good idea; 6.6% believe it is a bad idea, 0% believe it is a very bad idea. 2003 La Nación, 17 June 2003, “La clase Public Poll by team of researchers at the Universidad de Buenos Aires (167 - media, auto-crítica contra la corrupción” opinion respondents)  Percentage of professionals and small and medium businessmen that consider these institutions very corrupt (beginning with the institution considered the most corrupt): Senate (92.5%), Union leaders (92.9%), Supreme Court (85.5%), Workers in Pension bureau (82.9%); Chamber of Deputies (82.1%); Executive (80.9%)… 2003 La Nación, 29 June 2003, “El 88% Public Poll by Ipos-Mora y Araujo (300 phone interviews in the Buenos Aires - aprueba el juicio político a los jueces de opinion metropolitan area) la Corte”  Question, “How do you rate the decision of the government to carry out the impeachment of various justices of the Supreme Court” – Very good/good (88%); OK (4%); Bad (7%); Don’t know/didn’t respond (7%)

2004 Latinobarómetro survey of Latin Public Latinobarómetro survey - American Countries opinion  Survey of 19,500 people in 18 Latin American countries  Trust in the judiciary

o Argentina: 4.5% had a lot of trust in the judiciary, and 21.1% had some trust; 14th in terms of “a lot of trust” o Brazil: 16.7% had a lot of trust in the judiciary, and 31.2% had some trust; second in terms of “a lot of trust”  Percentage that said that the poor functioning of the judiciary was one of the main causes of delinquency in the country

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o Argentina: 58.2% (highest response rate) o Brazil: 31.4% (6th lowest response rate)

2005 Latinobarómetro survey of Latin Public Latinobarómetro survey - American Countries opinion  Survey of 20,000 people in 18 Latin American countries  How much in agreement with the statement that the justice system punishes those who are guilty o Brazil: 19.6% strongly agree; 23.7% agree (first in terms of “strongly agree”) o Argentina: 5.7% strongly agree; 19.7% agree (11th in terms of “strongly agree”)  How much in agreement with the statement that “justice takes a while, but finally happens” o Brazil: 21.0% strongly agree; 28.3% agree (first in terms of “strongly agree”) o Argentina: 5.3% strongly agree; 32.87% agree (13th in terms of “strongly agree”)  Trust in the judiciary o Brazil: 15.7% had a lot of trust in the judiciary, and 25.2% had some trust; second in terms of “a lot of trust” o Argentina: 4.7% had a lot of trust in the judiciary, and 22.1% had some trust; 14th in terms of “a lot of trust”

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Web Appendix 3.5 Argentine CSJN Internal Structure and Case Review Procedures

Note: The information in this appendix, unless otherwise noted, was garnered through five interviews with six Supreme Court clerks conducted between August and October 2004.

Internal Structure

In 2004, the CSJN includes 10 “Secretarías.” Seven specialize in a particular branch of law and two are accessory and administrative offices.1 These Secretarías serve as the “nexo” for all of the cases that circulate through the Court; they coordinate the process, offer institutional and administrative support, and work to ensure that contradictory sentences are not issued. Each Secretaría has its own staff of attorneys.  Secretaría Judicial Nro. 1 – Derecho Comercial y Competencias (Decreto Ley 1285/58)  Secretaría Judicial Nro. 2 – Derecho Civil y Previsional  Secretaría Judicial Nro. 3 – Derecho Penal  Secretaría Judicial Nro. 4 – Derecho Administrativo  Secretaría de Juicios Originarios  Secretaría Judicial Nro. 5 – Cuestiones Electorales y de Enjuiciamiento de Magistrados/Asignación de Causas  Secretaría Judicial Nro. 6 – Derecho Laboral  Secretaría Judicial Nro. 7 – Derecho Fiscal, Aduanero, Bancario  Secretaría de Jurisprudencia (Administración)  Administración General CSJN

Each Secretaría is led by a Secretario General de la Corte (considered, in the judicial hierarchy, to be at the same level as a federal appeals court judge, though they are in no sense judges). The background of a Secretario is normally within the judiciary (rather than as a practicing lawyer), and many were previously on the staff of a Justice. These individuals, who tend to stay in the post for long periods of time, play an important role: as the case review procedures outlined below indicate, in many cases, Secretarios write the draft opinion that forms the nucleus of Supreme Court rulings, and also write the memos (and handle all other information) pertinent to each case that circulate through the Court with the case and the draft opinion. Each Secretaría also includes a staff of Secretarios Letrados (equivalent, in the judicial hierarchy, to a federal first instance judge) and Prosecretarios Letrados (equivalent to a federal appeals court clerk), and other administrative personnel. In the period just after the transition to democracy (1983), there were competitions held for the positions of Secretario, Secretarios Letrados, and Prosecretarios Letrados. Since the early 1990s, however, these were suspended, and in order to

1 The structure has been more or less the same since 1984 with the following exceptions: the functions of the previously existing Secretaría de Auditores de la CSJN passed to the Consejo de la Magistratura; the previously existing Secretaría Especial Causa Embajada de Israel was fused into the Secretaría de Derecho Penal; a previously existing Secretaría de Investigaciones de Derecho Comparado became a Dirección (a lower administrative unit); and some of the functions of Secretaría Judicial Nro. 5 passed to the Consejo de la Magistratura.

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be hired, an individual must be “sponsored” by a Justice, and then appointed by the majority of Justices (i.e., with five votes in favor).2

Each justice has his or own staff, including Secretarios Letrados (usually between three and eight), and Prosecretarios Letrados (usually between one and five) and additional administrative personnel. Some of these individuals may stay with the Justice through most of his tenure on the Supreme Court. The degree to which Justices rely on their staff to pen their votes differs from Justice to Justice, and case to case. When a Justice leaves and a new Justice is appointed, the new Justice has at his disposal the staff of the departed Justice.3 Once the new Justice arrives, he evaluates the staff and decides whom to keep; a large part of the staff normally stays. Until approximately 1994, if the Justice wanted to hire new staff, there were concursos (competitions) for the positions of Secretario Letrado and Prosecretario Letrado, and most people came from within the judicial career. Now, however, the Justice may choose from among the staff already working elsewhere in the Court, or appoint someone of his choosing (with the positive vote of five justices, though this is more a formality than in the case of appointing staff to the Secretarías). Nonetheless, there is the potential for a great deal more stability in the Supreme Court’s staff than there has been with its Justices.

Case Review and Resolution Procedures

When a case arrives to the high court, it goes to one of its two Mesas de Entrada (Reception) – one for cases that fall in the Court’s original jurisdiction, and one for cases in its appellate jurisdiction.4 If the case falls in the Court’s original jurisdiction, it is distributed to the Secretaría de Juicios Originarios,5 while all appeals go to the Oficina de Asignación de Causas.6 This latter office assigns each appeals case to a particular Secretaría (the “nexus” for each case that serve as administrative base and shepherds each case through the review process) according to the subject matter of the case and distributes each appeals case – either to the chambers of a justice (if the case is a recurso extraordinario [RE])7 or to the Secretaría designated as the “nexus” (if the case is a recurso ordinario [RO]8 or a recurso de queja [RQ]).

2 There is not a formalized process for making these appointments. According to my respondents, there is some resentment among the Court staff who achieved their positions through the competitions of the late 1980s of those who were achieved their positions as a result of their connections. 3 If the time gap between the old Justice’s departure and the new Justice’s arrival is long, the staff may be sent to work in the Secretaría of his specialty while waiting for the new Justice to arrive. 4 There are certain other functions the Court plays, such as deciding competency conflicts between different lower instance or appeals courts or state Supreme Courts, but most of the Court’s work is in resolving cases in its original and appellate jurisdiction. In the mid-1990s a third Mesa de Entrada was established for a particular kind of appeals case dealing with pensions. 5 When the Court receives a case in its original jurisdiction, its treatment of the case – from receiving it through the writing of the draft sentence (all of which happens in the Secretaría) – is very similar to the procedure used by a first instance Court to decide a case. From the formulation of the draft sentence forward, the case review process is the same as that used with other types of cases. Since very few cases fall in the Court’s original jurisdiction the earlier phase of the decision-making process for original jurisdiction cases will not be discussed. 6 The only exceptions are criminal cases (which all go to the Criminal Law Secretaría regardless of whether they fall in the Court’s original jurisdiction or are appeals cases) and cases having to do taxes/customs (which all go to the Secretaría de Derecho Fiscal y Aduanero, Bancario). 7 In REs, the entire case file is sent to the Supreme Court by the court that granted the recurso. There was a lack of clarity among respondents with respect to how these cases are assigned to justices. Some suggested that they are

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The case-review process is completely written in form.9 A Justice and his collaborators (in the case of REs), or the clerk in charge of the Secretaría and his collaborators (in the case of ROs and RQs) study the case. Should the Secretaría that assigns cases, the Secretaría that serves as the “nexo” for the case, or one of the first few vocalías (justices’ chambers) determine that a case is of great importance, all of the Justices are notified, and often a small sign saying “urgent” or “special treatment” as added to the case file.10 After studying the case, the Justice and his collaborators (in the case of REs), or the clerk in charge of the Secretaría and his collaborators (in the case of ROs and RQs) may move to dismiss the case, request an advisory opinion from the Procurador General (PG), or write a draft decision.

A large majority of the cases the Court considers are dismissed.11 Some are dismissed on technical grounds. REs and RQs can also be rejected using one of 25 different “formulae” – two- or three-line justifications the Court can offer if it deems the case to be insufficiently “transcendent” to be decided. Many of these are based on revised Article 280 of the Civil and Commercial Procedural Code and can be invoked with no further justification than reference to the code (although the option to write a longer opinion exists).12 For example, cases may be dismissed if they do not have to do with federal law, or if they do have to do with federal law but seem well-decided by the court from which they were appealed. Most such dismissals do not imply a confirmation of the lower court ruling. When a Justice or a Secretario would like to use one of these forms of dismissal, a memo proposing the rejection and the justification is sent to all of the justices, and the case and the draft opinion circulate among the five Justices associated with the Secretaría serving as the “nexo” for the case.13 If all five Justices agree that the appeal should be dismissed (and no other Justice asks to see the case), the case/draft opinion is taken out of circulation, the case is closed, and the remaining four Justices do not see the case.14 If those five justices do not agree, the case keeps circulating to the rest of the Justices.

distributed to a justice specializing in the type of law to which the case corresponds (i.e., a criminal case would be distributed to a Justice specializing in criminal law); others suggested that this is no longer the case. 8 ROs involve more work for the Court because it has to see that the entire case is in order, and read all the parts before starting to judge it. 9 Since the early 2000s, public hearings have been held for some Supreme Court cases that were of great public concern (and if five justices voted to hold one); in these hearings, each side orally gave its argument, and interested others could be present and speak. In early 2007, the Court began to consider the possibility of more formally and consistently incorporating oral hearings (which would be public and televised) for the most important cases (La Nación, 05 February 2007, “Incorporá la Corte la audiencias públicas”). 10 Sometimes, when cases are of sufficient urgency, they are immediately photocopied and sent to all Justices even before the circulation of the draft opinion begins. 11 To give one idea, a clerk estimated that 80% of RQs are rejected, and a large portion of REs also. But there is inconsistency within the Court; some Secretarios apply the “formulae” discussed below more often than do others. 12 Law 23.774 (passed in April 1990, the same law that expanded the Court from five to nine members) modified article 280 of the Civil and Commercial Procedural Code, affording the Court the ability to utilize an expedited review process in order to dismiss REs and RQs (the routes through which the majority of cases arrive to the Supreme Court) that it deems of lesser importance. 13 A different set of five Justices is associated with each Secretaría. 14 Some scholars have equated this process with the U.S. Supreme Court’s process of denying certiorari – however there is a large difference between the processes. While case review procedures are somewhat abbreviated when the Court rejects a case due to a technical deformity or using the mechanisms established in article 280 of the legal code, in most cases (besides those in which hundreds or thousands of cases are exact copies of one another), the case must still be fully prepared, and considered by at least five justices.

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The circumstances under which the PG is asked to offer an advisory opinion on cases have changed over time.15 All cases in the original jurisdiction of the Court are considered by the PG, and it is he who rules on whether the case falls within the Court’s competencia (jurisdiction). While from the transition to democracy through 1998 the intervention of the PG was at the discretion of the Court (and it usually asked for intervention in extremely important cases only), since Law 24.946 of 1998, it is obligatory to send RQs (that the Court has decided to consider)16 and REs to the PG for an advisory opinion prior to Court personnel drafting an opinion. For all other cases, five Justices must vote to send the case to the PG for it to be sent there.17 The case and the advisory opinion must return to the Secretaría (in the case of RQs) or to the Justice’s chambers (in the case of REs) before the draft opinion can be written. In all cases, the PG’s opinion is merely advisory. The involvement of the PG often slows the decision-making process.

Once the Justice and his collaborators (in the case of REs), or the clerk in charge of the Secretaría and his collaborators (in the case of ROs and RQs), has written the draft opinion, it circulates among the justices. The order in which the case circulates is established by the Secretaría designated as the “nexo” for the case; the case always returns to the Secretaría before proceeding from one Justice to the next in order to ensure that it is not lost, that it is always clear where it is in the process, and to keep track of the direction in which the vote seems to be going.18 Each Justice must consider each case unless he or she is recused, excused, not present, or simply does not want to sign the case (which Justices can do with no justification).19 In the event that fewer than five Justices are available to rule on a case, conjueces (substitute justices) are designated to the Court so that it can rule.20

15 The Procurador General, who heads the Ministério Público (which the 1994 constitution established as a fourth, extra-judicial power) is something like the U.S. Attorney General or Solicitor General. He is nominated by the President of the country and appointed with the approval of the Senate. His mandate is to act in defense of the law and legal procedure. While the PG signs off on advisory opinions, in reality the government functionaries who work at the Procuración write them. If there is a large “family” of repeated cases, only one case from the family is sent to the PG for consideration. 16 While in the past the Court could decide to open an RQ on the recommendation of one justice, since 2004, if a Secretario thinks that the Court should accept and consider an RQ, he must write a memo to the Justices justifying this choice. If three Justices agree, the case file is requested from the court where the RE was denied, and goes directly to the Procurador General for him to write an advisory opinion. 17 In 2004 the Justices decided that it was necessary for three Justices to agree to request the opinion of the PG in an RQ in order to do so (La Nación, 25 February 2004, “Otro paso en favor de la transparencia del Poder Judicial”). 18 For REs and RQs, only the appeal is circulated, not the entire case file. The criterion that the Secretaría uses to establish the order in which its “set of Justices” will review the case is not clear; it may be that the case goes first to a Justice who has fewer cases assigned to him at that moment; Justices may indicate to the Secretaría that they would like to be among the first five to see a case; Secretarías place more senior Justices earlier in their circulation schedules; or those earliest in the cycle may be those who specialize in the material of the case. 19 Until a majority is formed, Justices who have not voted must either vote or officially excuse themselves so they can be replaced. 20 The institution of “conjueces” has existed for more than a century, but the method of selecting them has varied. At the time of the democratic transition, a list of 15 conjueces (all of whom needed to have all the necessary requirements to be a justice) was compiled annually. Later, conjueces were chosen by lottery from among the presidents of the national appeals courts located in the capital and the heads of the federal appeals courts located throughout the country; if those chosen did not wish to participate in the case, the conjueces would be chosen from among an established list of 10 people. Conjueces have sat on the Court when it has handed down decisions of extraordinary importance, and sometimes a Court composed entirely of conjueces has made decisions (La Nación, 05 June 1095, “La independencia del Poder Judicial;” 05 December 2002, “Cómo se eligen los conjueces”).

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As the draft opinion circulates, Justices can add comments, concurrences, and dissents, and they also communicate with each other via notes.21 All such additions and notes continue circulating with the draft opinion. Before the case begins to circulate, or as it does so, it is possible that the parties to the case or their representatives visit the Justices’ chambers.

After the final Justice has reviewed the case, the case (and all accompanying memos and materials) return to the Secretaría that was the “nexo” for the case. The Secretario in charge of the Secretaría considers the Justices’ votes (deciding, for instance, what is a partial dissent and what is a concurrence, which affects who is in the majority and minority) and makes the final count of the votes; if there are at least five votes in the same direction, the case has been decided.22 The case and decision then go to the Oficina de Confrontación y Copias to be organized into a final decision, which is sent back to the Secretaría that is the “nexo” for the case.

Not every case that enters the Supreme Court follows this process. Due to the nature of the civil law system, often hundreds or thousands of identical cases enter the Court. The Secretarios of the Secretarías notice when this occurs, put these cases to the side, and circulate just one representative case (a “caso testigo” or test case); the decision on that case is then applied to all of the identical cases in a process reminiscent of applying precedent in a common law system.

Justices hold an “acuerdo” (meeting) each Tuesday to sign opinions.23 Before each weekly “acuerdo,” the president of the Court establishes the list of the important issues that will be addressed in the meeting.24 The Secretarios then circulate to the Justices a list of the cases that are ready for signing that they will take to the acuerdo; these lists indicate which cases are the most important, and may include cases that are urgent and not directly relating to one of the established themes. These meetings, in which the Secretarios also participate, generally entail little discussion as consensus is assumed if the case was taken to the acuerdo. Not all of the cases on the list the Secretarios formulated are necessarily discussed or signed. On average, between 100 and 150 cases are signed each week.25

Important cases (for instance, those that are the test case for a whole family of cases) are, on occasion, discussed in these meetings (and sometimes are discussed in more than one meeting if

21 In the 1980s, when there were fewer cases and fewer Justices, there was more discussion among the justices as cases circulated. In 2004, however, there is rarely verbal communication among the Justices regarding cases other than the most transcendent. 22 Most cases circulate only once. However, if, for example, a dissent was written by the sixth Justice, and the seventh, eighth and ninth Justices adhered to that dissent, then the Secretario in charge of the circulation of the case will send the case back to the first, second, third, fourth, and fifth Justices so they can see the dissent, and perhaps change their minds. (Cases may be re-sent to Justices who have already seen them in the middle of the circulation as well.) Also, some cases may end up with four or five draft decisions by the time they finish circulating; under these circumstances, the Secretario will circulate the case again so the Justices can synthesize the opinion. All of these practices, which are meant to approximate deliberation, slow down the circulation and thus the decision on the case. 23 Very infrequently, the president of the Supreme Court calls extraordinary sessions on Thursdays. 24 There was not full agreement on this point; some respondents told me that the Secretarios take to the weekly meetings whatever cases are ready to be signed. Nonetheless, all clerks agreed that there is no firm correspondence between the order in which cases entered the Court and the order in which they are decided. 25 There was disagreement among respondents on this figure, and there is likely a great deal of variation.

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the Justices do not agree) prior to their starting through the whole cycle just described. When these cases are discussed prior to their circulation, the Secretarios are asked to leave and only the Justices are present. After those discussions, the case circulates as usual.26 Subsequently, the Justices discuss the particular moment they should choose to sign (and thus begin the process of making public) the decision.

Following the signing of the decision, it goes to various offices for administrative and bureaucratic processing, as well as for notification of the parties, and, if relevant, to return the case to the lower instance court. (These include the Oficina de Control/Copias, the Oficina de Jurisprudencia, the Oficina de Notificaciones and the Oficina de Prensa.) The Oficina de Jurisprudencia decides which cases will be published in the Fallos de la Corte Suprema De la Nación, the official volumes containing the Court’s decisions.

26 Very infrequently, a case starts to circulate, and one of the Justices then suggests that it should be discussed in an acuerdo before circulating farther.

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Web Appendix 4.1 Brazilian STF Justices by Year and Appointer, 1985-2011 Sources: STF web site (http://www1.stf.gov.br/institucional/ministros/ and http://www.stf.jus.br/portal/cms/verTexto.asp?servico=sobreStfComposicaoComposicaoPlenariaApresentacao)

Year Pres. Justice Justice Justice Justice Justice Justice Justice Justice Justice Justice Justice of Brazil 1985 Sarney Djaci Alves João Baptista José Carlos Décio Meirelles Luiz Rafael José Néri Oscar Dias Aldir José Francisco Sydney Sanche Luiz Octavio Falcão Cordeiro Moreira Alves de Miranda2 Mayer Da Silveira Corrêa Guimarães Rezek (Figueiredo) Pires e (Castello Guerra (Geisel) (Geisel) / (Geisel) (Figueiredo) (Figueiredo) Passarinho (Figueiredo) Albuquerque Branco) (Geisel) PRES1 Carlos Alberto (Figueiredo) Gallotti Madeira3 (Figueiredo) (Sarney) 1986 Sarney Djaci Alves João Baptista José Carlos Carlos Alberto Luiz Rafael José Néri Oscar Dias Aldir José Francisco Sydney Sanche Luiz Octavio Falcão Cordeiro Moreira Alves Madeira Mayer Da Silveira Corrêa Guimarães Rezek (Figueiredo) Pires e (Castello Guerra4 (Geisel) (Sarney) (Geisel) (Figueiredo) (Figueiredo) Passarinho (Figueiredo) Albuquerque Branco) (Geisel) / PRES (Figueiredo) Gallotti Célio de (Figueiredo) Oliveira Borja5 (Sarney) 1987 Sarney Djaci Alves Célio de José Carlos Carlos Alberto Luiz Rafael José Néri Oscar Dias Aldir José Francisco Sydney Sanche Luiz Octavio Falcão Oliveira Borja Moreira Alves Madeira Mayer Da Silveira Corrêa Guimarães Rezek (Figueiredo) Pires e (Castello (Sarney) (Geisel) (Sarney) (Geisel) (Figueiredo) (Figueiredo) Passarinho (Figueiredo) Albuquerque Branco) PRES (through PRES (Figueiredo) Gallotti 10 March) (from 10 (Figueiredo) March) 1988 Sarney Djaci Alves Célio de José Carlos Carlos Alberto Luiz Rafael José Néri Oscar Dias Aldir José Francisco Sydney Sanche Luiz Octavio Falcão Oliveira Borja Moreira Alves Madeira Mayer Da Silveira Corrêa Guimarães Rezek (Figueiredo) Pires e (Castello (Sarney) (Geisel) (Sarney) (Geisel) (Figueiredo) (Figueiredo) Passarinho (Figueiredo) Albuquerque Branco) PRES (Figueiredo) Gallotti (Figueiredo) 1989 Sarney Djaci Alves Célio de José Carlos Carlos Alberto Luiz Rafael José Néri Oscar Dias Aldir José Francisco Sydney Sanche Luiz Octavio Falcão6 Oliveira Borja Moreira Alves Madeira Mayer8 Da Silveira Corrêa10 Guimarães Rezek (Figueiredo) Pires e (Castello (Sarney) (Geisel) (Sarney) (Geisel) (Figueiredo) (Figueiredo) / Passarinho (Figueiredo) Albuquerque Branco) / PRES (through PRES José Paulo (Figueiredo) Gallotti Paulo Brossard 10 March) / (from 14 Sepúlveda (Figueiredo) de Souza José Celso March) Pertence11

1 (PRES) refers to the President of the Court.

2 Retired by decree 3 September 1985. 3 Assumed 19 September1985. 4 Retired 19 March 1986. 5 Assumed 17 April 1986. 6 Retired 30 January 1989.

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Pinto7 de Mello Filho9 (Sarney) (Sarney) (Sarney) 1990 Sarney/ Paulo Brossard Célio de José Carlos Carlos Alberto José Celso José Néri José Paulo Aldir José Francisco Sydney Sanche Luiz Octavio Collor de Souza Pinto Oliveira Borja Moreira Alves Madeira12 de Mello Filho Da Silveira Sepúlveda Guimarães Rezek14 (Figueiredo) Pires e (Sarney) (Sarney) (Geisel) (Sarney) / (Sarney) (Figueiredo) Pertence Passarinho (Figueiredo) / Albuquerque Marco Aurélio PRES (Sarney) (Figueiredo) Carlos Mário da Gallotti Mendes de Silva Velloso15 (Figueiredo) Farias Mello13 (Collor) (Collor) 1991 Collor Paulo Brossard Célio de José Carlos Marco Aurélio José Celso José Néri José Paulo Aldir Carlos Mário da Sydney Sanche Luiz Octavio de Souza Pinto Oliveira Borja Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Guimarães Silva Velloso (Figueiredo) Pires e (Sarney) (Sarney) (Geisel) Farias Mello (Sarney) (Figueiredo) Pertence Passarinho16 (Collor) PRES Albuquerque (Collor) PRES (Sarney) (Figueiredo) (from 10 May) Gallotti (through 10 PRES (Figueiredo) March) (from 10 March through 21 April) / Ilmar Nascimento Galvão17 (Collor) 1992 Collor/ Paulo Brossard Célio de José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Luiz Octavio Franco de Souza Pinto Oliveira Borja18 Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Nascimento Silva Velloso (Figueiredo) Pires e (Sarney) (Sarney) / (Geisel) Farias Mello (Sarney) (Figueiredo) Pertence Galvão (Collor) PRES Albuquerque José Francisco (Collor) (Sarney) (Collor) Gallotti Rezek19 (Figueiredo) (Collor) 1993 Franco Paulo Brossard José Francisco José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Luiz Octavio de Souza Pinto Rezek Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Nascimento Silva Velloso (Figueiredo) Pires e (Sarney) (Collor) (Geisel) Farias Mello (Sarney) (Figueiredo) Pertence Galvão (Collor) PRES (through Albuquerque (Collor) (Sarney) (Collor) 13 May) Gallotti (Figueiredo)

8 Retired 15 March 1989. 10 Retired, by decree on 17 January 1989 (named Minister of Justice) 11 Assumed 17 May 1989. 7 Assumed 5 April 1989. 9 Assumed 17 August 1989. 12 Retired (age limit), 16 March 1990. 13 Assumed 13 June 1990. 14 Resigned 14 March 1990 (presidential decree, 15 March 1990); named Minister of Foreign Affairs (15 March 1990)

15 Assumed 13 June 1990. 16 Retired (age limit) 21 April 1991. 17 Assumed 26 June 1991. 18 Retired by decree (1º April 1992); named (by decree, 2 April 1992) Minister of Justice. 19 Assumed 21 May 1992.

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PRES (from 13 May) 1994 Franco Paulo Brossard José Francisco José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Luiz Octavio de Souza Rezek Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Nascimento Silva Velloso (Figueiredo) Pires e Pinto20 (Collor) (Geisel) Farias Mello (Sarney) (Figueiredo) Pertence Galvão (Collor) Albuquerque (Sarney) / (Collor) (Sarney) (Collor) Gallotti Mauricio José (Figueiredo) Correa21 PRES (Franco) 1995 Cardoso Mauricio José José Francisco José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Luiz Octavio Correa Rezek Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Nascimento Silva Velloso (Figueiredo) Pires e (Franco) (Collor) (Geisel) Farias Mello (Sarney) (Figueiredo) Pertence Galvão (Collor) Albuquerque (Collor) (Sarney) (Collor) Gallotti PRES (Figueiredo) (from 17 May) PRES (through 16 May) 1996 Cardoso Mauricio José José Francisco José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Luiz Octavio Correa Rezek Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Nascimento Silva Velloso (Figueiredo) Pires e (Franco) (Collor) (Geisel) Farias Mello (Sarney) (Figueiredo) Pertence Galvão (Collor) Albuquerque (Collor) (Sarney) (Collor) Gallotti PRES (Figueiredo) 1997 Cardoso Mauricio José José Francisco José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Luiz Octavio Correa Rezek22 Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Nascimento Silva Velloso (Figueiredo) Pires e (Franco) (Collor) / (Geisel) Farias Mello (Sarney) (Figueiredo) / Pertence Galvão (Collor) Albuquerque Nelson (Collor) PRES (Sarney) (Collor) Gallotti Azevedo (from 22 May) PRES (Figueiredo) Jobim23 (through 20 (FHC) May) 1998 Cardoso Mauricio José Nelson José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Luiz Octavio Correa Azevedo Jobim Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Nascimento Silva Velloso (Figueiredo) Pires e (Franco) (FHC) (Geisel) Farias Mello (Sarney) (Figueiredo) Pertence Galvão (Collor) Albuquerque (Collor) PRES (Sarney) (Collor) Gallotti (Figueiredo) 1999 Cardoso Mauricio José Nelson José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Luiz Octavio Correa Azevedo Jobim Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Nascimento Silva Velloso (Figueiredo) Pires e (Franco) (FHC) (Geisel) Farias Mello (Sarney) (Figueiredo) Pertence Galvão (Collor) Albuquerque (Collor) PRES (Sarney) (Collor) PRES Gallotti (through 27 (from 27 May) (Figueiredo) May) 2000 Cardoso Mauricio José Nelson José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Luiz Octavio Correa Azevedo Jobim Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Nascimento Silva Velloso (Figueiredo) Pires e

20 Retired (age limit) 23 October 1994. 21 Assumed 15 December 1994. 22 Resigned 5 February 1997 to serve on International Court of Justice in the Hague. 23 Assumed 15 April1997.

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(Franco) (FHC) (Geisel) Farias Mello (Sarney) (Figueiredo) Pertence Galvão (Collor) Albuquerque (Collor) (Sarney) (Collor) PRES Gallotti24 (Figueiredo) / Ellen Gracie Northfleet25 (FHC) 2001 Cardoso Mauricio José Nelson José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Ellen Gracie Correa Azevedo Jobim Moreira Alves Mendes de de Mello Filho Da Silveira Sepúlveda Nascimento Silva Velloso (Figueiredo) Northfleet (Franco) (FHC) (Geisel) Farias Mello (Sarney) (Figueiredo) Pertence Galvão (Collor) (FHC) (Collor) (Sarney) (Collor) PRES (through PRES May) (From 31 May) 2002 Cardoso Mauricio José Nelson José Carlos Marco Aurélio José Celso José Néri José Paulo Ilmar Carlos Mário da Sydney Sanche Ellen Gracie Correa Azevedo Jobim Moreira Alves Mendes de de Mello Filho Da Silveira26 Sepúlveda Nascimento Silva Velloso (Figueiredo) Northfleet (Franco) (FHC) Farias Mello (Sarney) (Figueiredo) / Pertence Galvão (Collor) (FHC) (Collor) Gilmar Ferreira (Sarney) (Collor) PRES Mendes27 (FHC) 2003 Lula Mauricio José Nelson José Carlos Marco Aurélio José Celso Gilmar Ferreira José Paulo Ilmar Carlos Mário da Sydney Ellen Gracie Correa Azevedo Jobim Moreira Alves2 Mendes de de Mello Filho Mendes Sepúlveda Nascimento Silva Velloso Sanches32 Northfleet (Franco) (FHC) (Geisel) / Farias Mello (Sarney) (FHC) Pertence Galvão30 (Collor) (Figueiredo) / (FHC) PRES Joaquim (Collor) (Sarney) (Collor) / Antônio Cezar (from 05 June) Benedito PRES Carlos Ayres Peluso33 Barbosa29 (through 05 Britto31 (Lula) Gomes June) (Lula) (Lula) 2004 Lula Mauricio José Nelson Joaquim Marco Aurélio José Celso Gilmar Ferreira José Paulo Carlos Ayres Carlos Mário da Antônio Cezar Ellen Gracie Correa34 Azevedo Jobim Benedito Mendes de de Mello Filho Mendes Sepúlveda Britto Silva Velloso Peluso Northfleet (Franco) (FHC) Barbosa Gomes Farias Mello (Sarney) (FHC) Pertence (Lula) (Collor) (Lula) (FHC) PRES PRES (Lula) (Collor) (Sarney) (through 07 (from 03 May) / Jun) Eros Roberto Grau35

24 Retired (age limit) 27 October 2000 (decree 31 October 2000). 25 Assumed 14 December 2000. 26 Retired (age limit) 24 April 2002. 27 Assumed 20 June 2002. 28 Retired (decree) 22 April 2003. 29 Assumed 25 June 2003. 30 Retired (decree) 03 May 2003.

31 Assumed 25 June 2003. 32 Retired (age limit) decree of 25 April 2003. 33 Assumed 25 June 2003. 34 Retired May 2004 35 Assumed 30 June 2004.

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(Lula) 2005 Lula Eros Roberto Nelson Joaquim Marco Aurélio José Celso Gilmar Ferreira José Paulo Carlos Ayres Carlos Mário da Antônio Cezar Ellen Gracie Grau Azevedo Jobim Benedito Mendes de de Mello Filho Mendes Sepúlveda Britto Silva Velloso Peluso Northfleet (Lula) (FHC) Barbosa Gomes Farias Mello (Sarney) (FHC) Pertence (Lula) (Collor) (Lula) (FHC) PRES (Lula) (Collor) (Sarney) 2006 Lula Eros Roberto Nelson Joaquim Marco Aurélio José Celso Gilmar Ferreira José Paulo Carlos Ayres Carlos Mário da Antônio Cezar Ellen Gracie Grau Azevedo Jobim Benedito Mendes de de Mello Filho Mendes Sepúlveda Britto Silva Velloso38 Peluso Northfleet (Lula) (FHC) Barbosa Gomes Farias Mello (Sarney) (FHC) Pertence (Lula) (Collor) / (Lula) (FHC) PRES (Lula) (Collor) (Sarney) Ricardo PRES (from (through Lewandowski Mar. 30) Mar. 30) /36 (Lula)39 Cármen Lúcia Antunes Rocha (Lula)37 2007 Lula Eros Roberto Cármen Lúcia Joaquim Marco Aurélio José Celso Gilmar Ferreira José Paulo Carlos Ayres Ricardo Antônio Cezar Ellen Gracie Grau Antunes Rocha Benedito Mendes de de Mello Filho Mendes Sepúlveda Britto Lewandowski Peluso Northfleet (Lula) (Lula) Barbosa Gomes Farias Mello (Sarney) (FHC) Pertence40 (Lula) (Lula) (Lula) (FHC) (Lula) (Collor) (Sarney) / (PRES) Carlos Alberto Menezes Direito41 (Lula) 2008 Lula Eros Roberto Cármen Lúcia Joaquim Marco Aurélio José Celso Gilmar Ferreira Carlos Carlos Ayres Ricardo Antônio Cezar Ellen Gracie Grau Antunes Rocha Benedito Mendes de de Mello Filho Mendes Alberto Britto Lewandowski Peluso Northfleet (Lula) (Lula) Barbosa Gomes Farias Mello (Sarney) (FHC) Menezes (Lula) (Lula) (Lula) (FHC) (Lula) (Collor) PRES (from Direito PRES (through Apr. 23) (Lula) Apr. 23) 2009 Lula Eros Roberto Cármen Lúcia Joaquim Marco Aurélio José Celso Gilmar Ferreira Carlos Carlos Ayres Ricardo Antônio Cezar Ellen Gracie Grau Antunes Rocha Benedito Mendes de de Mello Filho Mendes Alberto Britto Lewandowski Peluso Northfleet (Lula) (Lula) Barbosa Gomes Farias Mello (Sarney) (FHC) Menezes (Lula) (Lula) (Lula) (FHC) (Lula) (Collor) PRES Direito42 (Lula) / José Antonio Dias Toffoli (Lula)43 2010 Lula Eros Roberto Cármen Lúcia Joaquim Marco Aurélio José Celso Gilmar Ferreira José Antonio Carlos Ayres Ricardo Antônio Cezar Ellen Gracie Grau Antunes Rocha Benedito Mendes de de Mello Filho Mendes Dias Toffoli Britto Lewandowski Peluso Northfleet

36 Resigned 2006; subsequently appointed Minister of Defense. 37 Assumed 21 June 2006 38 Retired (age limit) 2006

39 Assumed 16 March 2006 40 Retired (age limit) 17 August 2007 41 Assumed 05 September 2007 42 Deceased 01 September 2009 43 Assumed 23 October 2009

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(Lula)44 / (Lula) Barbosa Gomes Farias Mello (Sarney) (FHC) (Lula) (Lula) (Lula) (Lula) (FHC) VACANT (Lula) (Collor) PRES (through PRES (from 23 23 April) April) 2011 Rousseff Luiz Fux Cármen Lúcia Joaquim Marco Aurélio José Celso Gilmar Ferreira Carlos Carlos Ayres Ricardo Antônio Cezar Ellen Gracie (Rousseff)45 Antunes Rocha Benedito Mendes de de Mello Filho Mendes José Antonio Britto Lewandowski Peluso Northfleet (Lula) Barbosa Gomes Farias Mello (Sarney) (FHC) Dias Toffoli (Lula) (Lula) (Lula) (FHC)46 / (Lula) (Collor) (Lula) PRES Rosa Weber (Rousseff)47

44 Retired (age limit) 2 August 2010 45 Assumed 3 March 2011 46 Resigned 8 August 2011 47 Assumed 19 December 2011

46 Kapiszewski ~ High Courts and Economic Governance ~ Web Appendices

Web Appendix 4.2 Backgrounds of Brazilian STF Justices Appointed since the Transition to Democracy (Justice on the Court in December 2011 in bold)

Source: Bios of STF justices available on the STF web site (http://www1.stf.gov.br/institucional/ministros/alfa.asp?per='R') accessed 05 October 2007; additional data gathered from STJ web site (www.stj.jus.br) and from justices’ CVs.

Name and Law specialty Political background: “Fourth branch“ Judicial background: Evidence of date joined significant positions held in background: significant positions held in the connection to and left the federal Executive or Legislature significant positions judiciary prior to appointment appointing Court prior to appointment held in federal president/party Ministério Público of appointing prior to appointment president

PRESIDENT SARNEY’S APPOINTMENTS

Carlos Administrative  “Auditor-judge” in the  Was juridical Alberto law; civil law Military Justice system of the assistant to, Madeira state of Maranhão (1966) named federal (Assumed  Federal judge (Maranhão) judge by, and Sept. 1985) (1967-1977) appointed to (Retired  Member of the Regional the Regional March 1990) Electoral Tribunal of Electoral Maranhão (1967-1972) Tribunal by  Justice on the Federal Sarney when Tribunal of Appeals (TFR) he was (1977-1985) governor of  Judge on the Superior Maranhão Electoral Tribunal (1981- 1983) (as part of TFR)

Célio de Constitutional  Director of the Caixa  Personal

Oliveira Borja law Econômica Federal of Rio de friend of (Assumed Janeiro (1967-1970) Sarney’s April 1986)  Federal Deputy (1971-1983) (CSE-14) (Resigned (held various leadership April 1992) posts)

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 Head of the Special Assistant Body to the President of the Republic (1985-1986)

Paulo Civil law and  Federal Deputy (1967-1971) Brossard de constitutional  Senator (1975-1983) Souza Pinto law  Vice-Presidential candidate (Assumed (1978) April 1989)  Member of commission that (Retired wrote parts of the new October 1994) constitution to be given to constituent assembly (1985)  Attorney General (1985- 1986)  Minister of Justice (1986- 1989)

José Paulo Constitutional  Attorney General  Clerk on the Supreme Federal Sepúlveda law; legal (1985-1989) Tribunal (1965-1967) Pertence theory (Assumed May 1989) (Retired August 2007)

José Celso de Constitutional  Assistant in the Attorney  Prosecutor (São Mello Filho law and civil General’s Office (1986-1989) Paulo state) (Assumed procedure  Interim Attorney General (1970-1989) August 1989) (various times, 1986, 1987 and 1988)

PRESIDENT COLLOR’S APPOINTMENTS

Carlos Mário Constitutional  Federal judge (Minas Gerais) da Silva law (1967-1977) Velloso  Justice on the Federal Tribunal (Assumed of Appeals (1977-1989)

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May1990)  Substitute and then full member (Retired of Federal Justice Counsel January 2006) (1980/1981; 1981/1983)  Justice on the Superior Tribunal of Justice (1989-1990)

Marco Labor law; civil  Member of the  Judge on the Regional Labor  Cousin of Aurélio procedure; Federal Tribunal (1st region) (1978- President Mendes de constitutional Ministério 1981). Collor Farias Mello law Público (1975-  Justice on the Supreme Labor (Assumed 1978) Tribunal (1981-1990) June 1990)

Ilmar Criminal law,  Federal judge (Acre) (1967- Nascimento civil procedure 1979) Galvão  Federal judge (2ª Vara, Federal (Assumed District) (1979-1985) June 1991)  Justice on the Federal Tribunal (Retired of Appeals (1985-1989) May 2003)  Justice on the Superior Tribunal of Justice (1989-1991)

José Francisco International law  Assistant for Planning and  Attorney  Member of the Permanent Court Rezek and Control in the Administration General (1972- of Arbitration (1987-2004) (Assumed constitutional of State Secretariat (1969- 1983) May 1992) law 1970) (Resigned  Extraordinary Assistant for Feb. 1997) the Chief of Staff of the President of the Republic (1981-1983)

PPRESIDENT FRANCO’S APPOINTMENTS

Maurício José Commercial law  Federal Senator (1986-1994) Some Corrêa and civil law (held various leadership commented that (Assumed positions) political affinity

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December  Minister of Justice (1992- played a role in 1994) 1994) his appointment; (Retired that it was a May 2004) “prize” for having been faithful to Franco (CSE- 12)

PPRESIDENT CARDOSO’S APPOINTMENTS

Nelson Civil procedure  Federal Deputy (1987- Azevedo and 1991/1991-1995) Jobim constitutional  Minister of Justice (1995- (Assumed law 1997) April 1997) (Resigned March 2006)

Ellen Gracie Civil procedure  Representative of the Ministry  Federal prosecutor  Judge on the Regional Federal Northfleet and of Justice to the Deliberative (1973-1989) Tribunal (4th Region) (1989- (Assumed constitutional Counsel of the 2000) December law Superintendency of  Member of the Regional 2000 ) Development of the Southern Electoral Tribunal (Rio (Resigned Region (SUDESUL) Grande do Sul) (1990-1992) August 2011)

Gilmar Constitutional  Juridical counsel for the  Federal  Federal judge (1983-1984) Ferreira law General Subsecretariat of the prosecutor (1985- Mendes President of the Republic 1988) (Assumed (1990-1992) June 2002)  Technical Assistant for the process of constitutional reform in the Chamber of Deputies (1993-1994)  Technical Assistant for the Ministry of Justice (1995- 1996)

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 Undersecretary for Juridical Matters for the Chief of Staff’s Office (1996-2000)  Attorney General (2000- 2002)

PRESIDENT LULA’S APPOINTMENTS

Antonio Philosophy of  Judge (São Paulo state, 1967-  Some ties to Cezar Peluso law, civil law, 1986) the PT (CSE- (Assumed and civil  Judge on Tribunal of Justice 18) June 2003) procedure (São Paulo) (1986-2003)

Carlos Ayres Constitutional  Member of Tribunal de  Some ties to Britto law Contas (Sergipe) (1978-1990) the PT; closely (Assumed tied to a friend June 2003) of President Lula (CSE-18)

Joaquim Public law with  Official in the Ministry of  Member of the Benedito an emphasis on Foreign Affairs (1976-1979), Federal Prosecutors Barbosa constitutional (serving in the Brazilian Office (1984-2003) Gomes law and embassy in Finland) (Brasília, Rio de (Assumed administrative  Lawyer for the Federal Data Janeiro) June 2003) law Processing Service (SERPRO) (1979-1984)  Head of Juridical Counsel, Ministry of Health (1985- 1988)

Eros Roberto Economic and  Juridical consultant for the - Grau financial law group from São Paulo in the

(Assumed National Constituent June 2004) Assembly (1988)  Member of the Special Commission for Constitutional Revision (1993)

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 Member of the National Counsel of Economic and Social Development (2003- 2004)

Ricardo Human rights  Judge on the Criminal Lewandowski and criminal law Appeals Court (São Paulo) (Assumed (1990-1997) March 2006)  Judge on the Tribunal of Justice (São Paulo) (1997- 2006)

Cármen Business law,  Member of the Commission of  Prosecutor (Minas  Member of the Commission to Lúcia constitutional jurists formed to draft norms Gerais), also Study Electoral Reform Antunes law, and administrative procedures serving as State appointed by the TSE (1995) Rocha administrative for the Ministry of Justice Attorney General (Assumed law (1996) June 2006)  Member of the President’s Commission for Public Ethics (2004)

Carlos Civil  Judge on the Tribunal of Alberto responsibility; Justice (Rio de Janeiro) Menezes constitutional (1988-1996) Direito law  Justice on the Superior (Assumed Tribunal of Justice (1996- Sept. 2007) 2007) (Deceased, 2009)

José Antonio Electoral law,  Undersecretary for juridical  Legislative aid Dias Toffoli constitutional affairs, office of the Chief of for the (Assumed law, family law Staff (2003-2005) leadership of October 2009)  Attorney General (2007-2009) the PT in the

Chamber of Deputies (1995-2000)  Lawyer for the PT in Lula’s

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presidential campaigns in 1998, 2002, and 2006

PRESIDENT ROUSSEFF’S APPOINTMENTS

Luiz Fux Civil law  Coordinated group that wrote  State prosecutor (Rio  Judge/Electoral Judge (Rio de (Assumed new Civil Procedural Code de Janeiro) (1979- Janeiro) (1983-1997) March 2011) (2011) 1982)  Justice on the Tribunal of Justice (Rio de Janeiro) (1997-2001)  Justice on the Supreme Tribunal of Justice (2001- 2011) Rosa Weber Labor law  Substitute justice on the (Assumed Regional Labor Tribunal (4th December Region, Rio Grande do Sul) 2011) (1976-1981)  Conciliation judge, Porto Alegre (1981-1991)  Justice on the Regional Labor Tribual (4th Region, Rio Grande do Sul) (1991-2006)  Justice on the Superior Labor Tribunal (2006-2011)

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Web Appendix 4.3 Brazilian STF Justices Appointed between 1930 and 1984 (Justices at time of Transition to Democracy in Lower Case)

Source: Bios of STF justices available on the STF web site (http://www1.stf.gov.br/institucional/ministros/alfa.asp?per='R') accessed 05 October 2007.

Name Law Political background: Experience as public Judicial background: (years on specialty Significant positions held in federal prosecutor Significant positions held in Court) Executive or Legislature prior to the judiciary prior to or, if on appointment appointment Court in 1985 (date joined)/(date left)

PLINIO DE Criminal  Federal Deputy (1897-1900)  Federal prosecutor (1893- CASTRO law,  Federal Deputy (1924-1930) 1896) CASADO International  Federal Intervenor in Rio Janeiro (1930- (1931-1938) public law, 1931) Admin. law

JOÃO Civil and  Lawyer for the Bank of Brazil (1900-1905) MARTINS DE Criminal  Participated on Commission (part of CARVALHO Law Ministry of Justice) that created the Civil MOURÃO and Commercial Procedural Code for the (1931-1940) Federal District

EDUARDO Civil Law  Brazilian Delegate to the 6th PanAmerican  Brazilian delegate to the ESPINOLA and Conference (1928) Permanent Court of International (1931-1945) International Justice at the Hague (1929) Law

LAUDO  Federal Intervenor in São Paulo (1931)  Judge (1910 -1930) FERREIRA DE  Justice on Tribunal of Justice CAMARGO (1932-1951)

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(state-level) (1930-1932)

MANOEL DA Civil  Attorney General (state-  Judge (1903-1918) COSTA procedure level) (1927-1931)  Justice on Tribunal of Justice of MANSO São Paulo (1918-1924) (1933-1939)

OCTAVIO  Federal Judge (Rio de Janeiro) KELLY (1909-1917) (1934-1942)  Federal Judge (Federal District) (1917-1934)

ATAULPHO  Judge on the Civil and Criminal NAPOLES DE Tribunal (1897-1905) PAIVA  Court of Appeals Judge (Federal (1934-1937) District) (1905-1934)

CARLOS Civil and  Federal Deputy (1911-1914/1919-1923)  Attorney General (1934- MAXIMILIAN Electoral  Minister of Justice and Internal Affairs 1936) O PEREIRA Law  General Council for the Minister of Justice DOS SANTOS and Internal Affairs (1932-1934) (1936-1941)

JOSÉ International  Representative of the Ministry of Finance in  Prosecutor for the  Judge (2ª Pretoria) (1913-1931) LINHARES Law disappropriation processes Ministry of Justice and  Court of Appeals Judge (1931- (1937-1956)  President of the Republic (October 1945- Internal Affairs 1937) January 1946)

FRANCISCO  Clerk of the Tribunal of Justice of TAVARES DA Amazonas (1902-1903) CUNHA  Federal Judge (1909-1937)

MELLO (1937-1942)

ARMANDO DE  Auditor of the Navy (1914-1915)  Federal prosecutor  Court of Appeals Judge (Federal ALENCAR (1910-1914) District) (1926-1937)

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(1937-1941)

WASHINGTON  Prosecutor (Piraju, São  Federal Judge (1914-1938) OSORIO DE Paulo) (1898-1908) OLIVEIRA (1938-1940)

FREDERICO Const. Law  Judge (2ª vara, criminal) in the DE BARROS Federal District (1928-1932) BARRETO  Electoral Judge (1932-1934) (1939-1963)  Judge of State of Siege in the Federal District (1935-1936)  Judge (4ª vara, civil) (1936-1937)  President of the Tribunal of National Security (1937; 1939)  Court of Appeals Judge (Federal District) (1937-1939)

JOSÉ DE  Member of the Administrative Commission  Prosecutor of Education  Substitute Federal Judge (1931- CASTRO and President of the Caixa Econômica (1909-1911) 1934) NUNES Federal (1930)  Prosecutor (municipality  Federal Judge (2ª Vara) (Federal (1940-1949)  Justice on the Tribunal de Contas da União of Niterói) (1915-1931) District) (1934-1937) (1938-1940)  Judge for the Public Treasury (Federal District) (1937-1938)

ANNIBAL Admin.Law  Federal Deputy (1909-1912)  Attorney General (1938- FREIRE DA and Financial  Minister of Finance (1925) 1940) FONSECA Law  Federal Deputy (1927-1930) (1940-1951)  Member of the National Council of Education

WALDEMAR Economy  Technical Observer on the Commission of CROMWELL and Admin. Financial and Economic Studies for States DO REGO Law and Municipalities (1931-1934) FALCÃO  Deputy on the Constituent Assembly (1941-1946) (1934-1935)  Senator (1935-1941)

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 Minister of Labor (1937)

OROZIMBO Civil Law   Police Investigator  Municipal Judge (1913-1927) NONATO DA (1912)  Court of Appeals Judge (Minas SILVA  Prosecutor (1912-1913) Gerais) (1934-1940) (1941-1960)  Attorney General (1940- 1941)

JOSÉ Civil Law  Member of the National Council of  Attorney General of the PHILADELPHO and Criminal Education (1925-1929) old Federal District DE BARROS E Law  Juridical council for the Institute of (1934-1936) AZEVEDO Geography and Statistics (1937) (1942-1946)  Member of the Commission of Law and Public Registries (1927)  Member of the Legislative Commission (1931)  Member of the Commission Overseeing Acts of Provisional Government (1936)  Member of the Administrative Body of the Amorticization Fund (1936)  Member of Civil Code Revising Commission (1939)  Member and President of the Commission of Authorized Rights of the Ministry of Foreign Relations (1938)  Member of the Commission of Jurisconsultos of the Ministry of Foreign Relations (1937)  Member of the Brazilian Cultural Mission to Uruguay (1938)  Member of the Congress of Brazilian Judicial Rights (1922) and the Brazilian Confederation of Criminology (1936)

ALVARO Civil Law  Police investigator  Member of the Special Revolution GOULART DE (1909-1918) Tribunal (1930-1931) OLIVEIRA  Auxiliary prosecutor  Court of Appeals Judge (Rio de (1942-1950) (1918-1926) Janeiro) (1933-1942)

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 Prosecutor (1926-1930)  Attorney General of the old Federal District (1931-1933)

EDGARD Electoral  Auxiliary and Director of  Criminal Judge (7ª Pretoria of the COSTA Law the Office of old Federal District) (1907-1924). (1945-1957) Identification and  Judge (1924-1934) Statistics for the Police  Clerk on the Supreme Council of of the old Federal the Court of Appeals (1926) District (1905-1911)  President of the Disciplinary Commission for the Justice System (1929-1930)  Judge on the Regional Electoral Tribunal of the old Federal District (1932-1933)  Court of Appeals Judge (of the old Federal District) (1934-1945)

ANTONIO  Assistant in the Brazilian Embassy (1924-  Criminal Judge (7ª Vara) (1934- CARLOS 1934) 1940) LAFAYETTE  Judge (2ª Vara, orphans and DE ANDRADA inheritance) (1940-1943) (1945-1969)  Court of Appeals Judge (of the old Federal District) (1943-1945)

HAHNEMANN Roman Law  Attorney General (1941- GUIMARÃES and Civil 1946) (1946-1967) Law

ALVARO  Presided over the 6th military draft  Prosecutor for the Banks  Criminal Judge (5ª Pretoria) MOUTINHO  Assistant for the Census Service of the Ministry of (1924-1927) RIBEIRO DA Finance (1922-1924)  Criminal Judge (6ª Pretoria) COSTA  Chief of Police of the old (1927-1934) (1946-1966) Federal District (1945-  Judge (1934-1942) 1946)  Appeals Court Judge (1942-1945)

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LUIZ Civil  Bank Inspector in the old Federal District  Federal prosecutor GALLOTTI procedure (1927) (1929-1945) (1949-1974) and  Federal Intervenor in the state of Santa  Assistant Attorney international Catarina (1945-1949) General (1947-) law

FRANCISCO  Police investigator  Municipal Judge DE PAULA  Prosecutor  Judge (1931-1940) ROCHA  Court of Appeals Judge (of the old LAGÔA Federal District) (1940-1947) (1950-1960)  Justice on the Federal Tribunal of Appeals (1947-1950)

NELSON Criminal law  Police investigator in the  Judge (8º Pretoria of the old HUNGRIA old Federal District Federal District) (1924-1944) HOFFBAUER  Prosecutor  Court of Appeals Judge (1944- (1951-1961) 1951)

MARIO Criminal law  Chief of Staff in the Ministry of Education  Prosecutor (1909-1916)  Judge (1919-1933) GUIMARÃES and Health (1916-1919)  Chief of Police (1933-  Judge on Tribunal of Justice (São (1951-1956) 1934) Paulo) (1934-1951)  Member of the Superior Council of the Magistratura (1934)

ARY DE Criminal law  Judge (1928-1946) AZEVEDO  Judge on Tribunal of Justice (Rio FRANCO de Janeiro) (1946-1956) (1956-1963)

CANDIDO Criminal law  Member of the Constituent Assembly in  Justice of the Peace (São Paulo) MOTTA FILHO and 1934; participated on the Commission of (1956-1967) constitutional Constitution and Justice law  Director of “Model Reform” for the Re- Education Service and the Department of Media and Propaganda  Chief of staff for Minister of Labor  Minister of Education and Culture (1954)

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ANTONIO Civil law  Police investigator  Municipal Judge (1927) MARTINS  Prosecutor  Judge on Tribunal of Justice VILAS BOAS  Federal prosecutor, state (Minas Gerais) (1957-1966) of Minas Gerais  Attorney General, state of Minas Gerais

VICTOR  Assistant in the Ministry of Education  Attorney General of the NUNES LEAL (1939-1940) old Federal District . (1960-1969) (1956)  Director of the Documentation Service (1940-1943)  Attorney General (1960)  Chief of Staff for the President of the Republic (1956-1959)  Justice on the Tribunal de Contas of the Federal District (1960)

ANTONIO Civil law and  Juridical counsel for the Ministry of Public  Prosecutor in the old GONÇALVES international Works (1954-1955; 1956-1960) Federal District (1938- DE OLIVEIRA law  Member of the Commission of Jurists (part 1942) (1960-1969) of the Ministry of Justice) that developed the draft constitutional reform (1956)  Representative for Brazil in Assemblies of Petróleo Brasileiro S/A (PETROBRÁS) (1956-1959)  Lawyer for the Brazilian government before the British and Irish High Courts of Justice (1959)  Lawyer of the Brazilian government in an arbitration with the French government (1959)

PEDRO  Interim criminal  Judge (1922-1939) RODOVALHO prosecutor (2ª Vara da  Judge on Tribunal of Justice (São MARCONDES Comarca de São Paulo) Paulo) (1940-1961) CHAVES (1919-1922) (1961-1967)  Interim prosecutor with the Auditoria of Military Justice in São Paulo

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(1919-1922)

HERMES LIMA  Federal Deputy to the Constituent (1963-1969) Assembly (1946) (participated on Commission of Constitution and Justice)  Chief of Staff for the President of the Republic (1961-1962)  Minister of Labor and Social Security  Minister of Foreign Affairs and President of the Council of Ministers (1962-1963)  Member of the Directing Council of the University of Brasília Foundation and the Federal Council of Education (1962)

EVANDRO Criminal law  Chief of Staff for the President of the  Attorney General (1961- CAVALCANTI Republic (1963) 1963) LINS E SILVA  Minister of Foreign Affairs (1963) (1963-1969)

OSWALDO  Federal Deputy (1951-1954)  Prosecutor and Inspector  Justice on the Superior Electoral TRIGUEIRO  Brazilian Ambassador to Indonesia (1954- of Secondary Education Tribunal (1961-1964) DE 1956) (1925-1929) ALBUQUERQU  Attorney General (1964- E MELLO 1965) (1965-1975)

JOSÉ  Head of the Department of Publicity and EDUARDO DO Secretary of National Press (1926-1933) PRADO KELLY  Member of the Constituent Assembly (1965-1968) (1933-1934)  Federal Deputy (1935-1937, 1946-1950 and 1955-1959)  Minister of Justice (1955)

CARLOS Admin. law  Juridical assistant on the Commission of  Prosecutor in the old MEDEIROS Economic Defense (1942-1943) Federal District (1939) SILVA  Chief of Staff for the Minister of Justice  Attorney General (1951- (1965-1966) (1946) 1954; 1957-1960)

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 Minister of Justice (1966-1967) and principal author of the draft of the 1967 Constitution

ALIOMAR DE Tax law and  Deputy on the Constituent Assembly 1946 ANDRADE financial law  Federal Deputy (1946-1958 and 1960- BALEEIRO 1965) (1965-1975)  Brazilian Delegate to the UNESCO General Conference (1950)

ADALICIO Roman law  Prosecutor (1924-1929)  Judge (1929-1944) COELHO and criminal  Judge on Tribunal of Justice NOGUEIRA law (Bahia) (1944-1965) (1965-1972)

ELOY JOSÉ DA Commercial  Federal Deputy (1946-1951)  Municipal Judge (São Francisco ROCHA law, civil  Member of the Constituent Assembly de Paula) (1927-1930) (1966-1977) law, (1946)  Judge on Tribunal of Justice constitutional (state-level) (1953-1966) law

Djaci Alves Civil law  Judge (1943-1957) Falcão  Judge on Tribunal of Justice (February 1967) (Pernambuco) (1957-1961) (Retired January 1989)

RAPHAEL DE Civil law  Judge (1935-1949) BARROS  Judge on Tribunal of Justice (São MONTEIRO Paulo) (1949) (1967-1974)

THEMISTOCL International  Attorney General (1945-1946)  Prosecutor (Junta de  Member of the Special Tribunal ES BRANDÃO law,  Member of the commission that developed Sanções) (1931) (1930) CAVALCANTI constitutional the 1934 constitutional reform proposal (as  Prosecutor (Commission (1967-1969) law, admin. part of Ministry of Foreign Affairs) (1933) of Administrative law  President of the Commission of Tariffs and Correction) (1931) Public Employment (1943)  Prosecutor in Electoral Matters (various times

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 President of the Commission that revised beginning 1946) the Rural Code (1945)  Attorney General (1946- 1947)

MOACYR Civil law AMARAL SANTOS (1967-1972)

ADAUCTO  General Council for the Ministry of Public  Adjunct prosecutor (in LUCIO Works the old Federal District) CARDOSO  Federal Deputy (1954-1966) (1967-1971)

CARLOS Civil  Municipal Judge (1933-1938) THOMPSON procedure  Judge (1938-1953) FLORES  Judge on Tribunal of Justice (1968-1981) (state-level) (1953-)

OLAVO BILAC Civil law,  Federal Deputy (1954-1966) PINTO admin. law,  Brazilian Ambassador to France (1966- (1970-1978) criminal law 1970)

ANTONIO Civil law,  Public prosecutor (1937-  Judge (1946-1956) NEDER constitutional 1939)  Judge on Tribunal of Justice (Rio (1971-1981) law, admin. de Janeiro) law  Justice on the Federal Tribunal of Appeals (1964)

JOSÉ Civil  Judge (1940-1958) GERALDO procedure  Judge on Tribunal of Justice RODRIGUES (state-level) (1958-1964) DE ALCKMIN  Judge on Tribunal of Justice (São

(1972-1978) Paulo) (1964-1972)

FRANCISCO Civil  Lawyer for the Bank of Brazil (eventually  Attorney General (1969-  Justice on the Superior Electoral

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MANOEL procedure serving as head of its juridical service) 1972) Tribunal (1968-1969) XAVIER DE and criminal (1966-1969) ALBUQUERQUE law (1972-1983)

João Baptista  Public prosecutor, old Cordeiro Guerra Federal District (later (September known as Guanabara) 1974) (1940-1962) (Resigned March 1986)

JOÃO LEITÃO Admin. law  Director-General of the Secretariat of DE ABREU Education and Culture (1974-1981)  Advisor of the Department of Public Works  Chief of Staff (1940-1964)  Chief of Staff in Ministry of Justice (1966)  Minister of Extraordinary States for Matters of the Civil Cabinet of the President of the Republic  Chief of Staff for the President of the Republic (1981-1985)

José Carlos Roman law,  Lawyer for the Bank of Brazil  Attorney General (1972- Moreira Alves civil law;  Coordinator of the Commission of 1975) (June 1975) private law Legislative Studies of the Ministry of (Retired April Justice (1969-1972 and 1974-1975) 2003)  Member of commission charged with drafting the Brazilian Civil Code  President of the commission that revised the draft of the Criminal Procedure Code and head of the commission that revised the draft of the Criminal Contraventions  Chief of Staff for the Minister of Justice

(1970-1971)

CARLOS Commercial  Judge on Tribunal of Justice FULGÊNCIO law (Minas Gerais) (1958-1975) DA CUNHA

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PEIXOTO (1975-1981)

PEDRO Civil law  Public prosecutor (1943-  Judge SOARES 1945)  Electoral judge MUÑOZ  Judge on Tribunal of Justice (1977-1984) (state-level) (1960-1977)

FIRMINO Civil law  Public prosecutor (1937-  Judge on the Superior Electoral FERREIRA 1938) Tribunal (1976-1979) PAZ  Head prosecutor, city of (1981-1982) Teresina (1938-1940)  Federal prosecutor (state of Piauí) (1940-1962)  Assistant Attorney General (1962- )  Attorney General (1979- 1981)

CLÓVIS International  Attorney General (1979-  Judge on the Permanent Court of RAMALHETE law 1981) Arbitration (the Hague) MAIA (1981-1982)

ALFREDO Civil  Wrote draft of the Civil Procedural Code BUZAID procedure (1964) (1982-1984)  Coordinated process of revising various Legal Codes (1967) as part of Ministry of Justice  Minister of Justice (1969-1974)  Wrote draft of the Civil Procedural Code (converted in law in 1973)

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Decio Meirelles  Attorney General (1967-  Substitute Judge on the Superior de Miranda 1969) Electoral Tribunal (1961- 1964) (June 1978)  Judge on the Superior Electoral (Retired Tribunal (1964-1967) September 1985)  Justice on the Federal Tribunal of Appeals (1969-1978)

Luiz Rafael Criminal  Cabinet assistant for the Ministry of  Prosecutor (1945-1955) Mayer law, civil Finance (1963)  Auxiliary prosecutor for (December law, admin.  Member of the Administrative Council for the Public Prosecutor’s 1978) law Economic Defense (CADE) (1964) Office, state of (Retired March  Head of Juridical Assistance in the Pernambuco (1952- 1989) Extraordinary Ministry for the Coordination 1954) of Regional Organs (MECOR) (1964-1967)  Assistant Attorney  Juridical council for the Ministry of the General, state of Interior (1967) Pernambuco (1955- 1966)  Attorney General (1974- 1978)

José Néri da  Federal Judge (Porto Alegre) Silveira (1967-1969) (September  Justice on the Federal Tribunal of 1981) Appeals (1969-1981) (Retired April 2002)

Oscar Dias Economy  Federal Deputy (1955-1958, 1959-1963 and Corrêa and 1963-1967) (April 1982) international (Retired January law 1989 to become Minister of

Justice)

Aldir Guimarães Civil law,  Sub-Chief of Staff for the President of the  Adjunct prosecutor for  Justice on the Federal Tribunal of Passarinho commercial Republic (1964) the Commercial Social Appeals (1974-1982) (August 1982) law, criminal Service of the old  Justice on the Superior Electoral

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(Retired April law Federal District Tribunal (as part of the TFR) 1991)  Prosecutor of the (1979-1981) Commercial Social Service of the old Federal District  Head of Technical Assistance for Commercial Social Service (old Federal District)

José Francisco Constitutional  Extraordinary assistant to the Chief of Staff  Federal public  Clerk to a Justice of the Supreme Rezek law and to the President of the Republic (1981-1983) prosecutor (1972-1979). Federal Tribunal (1970-1972) (March 1983) international  Assistant for Planning and Control of the  Assistant Attorney (Resigned March law Administration Secretariat (1969/1970) General (1979-1981) 1990; named Minister of Foreign Affairs)

Sydney Sanches Civil law,  Judge (1962-1978) (August 1984) criminal law,  Criminal Appeals Court Judge (Retired April labor law, (São Paulo) (1978-1980) 2003) constitutional  Judge on Tribunal of Justice (São law Paulo) (1980-1984)

Luiz Octavio  Justice on the Tribunal de Contas da União  Assistant to the Attorney Pires e (1973-1984) General (1954-1956) Albuquerque  Prosecutor in the Public Gallotti Prosectutor’s Office (November (1956-1966) 1984)  Attorney General (1966- (Retired October 1973). 2000)

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Web Appendix 4.4 Presidency and Distribution of Seats in the Brazilian Senate and Chamber of Deputies (1986-2011)

Table A. Presidential Mandate, 1985-2010

President Year of Election Winning Percentage Neves 1985 Elected indirectly by the electoral college; Neves secured 72.4% of the votes Sarney 1985 (elected as vice president) NA: assumed presidency after death of Tancredo Neves Collor 1989 49.9% (second round) Franco 1992 NA: assumed presidency after dismissal of Collor Cardoso 1994 54.3% (first round) Cardoso 1998 53.1% (first round) Lula 2002 61.3% (second round) Lula 2006 60.8% (second round) Rousseff 2010 56.1% (second round)

Source: Political Database of the Americas (http://pdba.georgetown.edu/Elecdata/Brazil/brazil.html)

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Table B. Presidency and Distribution of Seats in the Brazilian Senate, 1986-2011

1986-19901 1990-19952 1995-19993 1999-2003 2003-2007 2007-2011 President President Collor/ President Cardoso/ President Cardoso/ President Lula/ President Lula/ Sarney/ PRN PSDB PSDB PT PT PFL (1990-Sept. 1992) Franco/ PRN (Sept. 1992-Dec. 1994) PDS/PPR 23.0% 5.3% 4.9% 4.9% 2.5% PMDB 63.5% 60.5% 27.2% 32.1% 25.9% 23.5% PDT 2.7% 2.6% 6.2% 4.9% 4.9% 4.9% PTB 5.3% 8.6% 3.7% 2.5% 7.4% PFL 9.5% 19.7% 23.5% 19.8% 23.5% PSDB 1.3% 12.3% 16.0% 14.8% 13.6% PRN 2.6% 2.5% PT 1.3% 6.2% 8.6% 16.0% 18.5% PST/PP 4.9% 4.9% 6.2% PSB 1.2% 2.5% 4.9% 3.7% PL 1.2% 1.2% 2.5% PR 4.9% DEM 6.2% All others 1.3% 1.4% 1.3% 1.4% 2.5% 11.1%

Note: Senators hold eight-year terms. Elections are held every four years; these elections alternate between replacing one third of Senators (as occurred in 1990, 1998 and 2006) and two-thirds of Senators (as occurred in 1994 and 2002). In 1995, the number of Senators from each state (and the federal district) was increased to three bringing the total number of Senators to 81. 1 Data for this time period based on a total of 74 Senators. 2 Data for this time period based on a total of 76 Senators. 3 Data for this time period and all subsequent periods based on a total of 81 Senators. Source: Data for 1986, 1990, 1994 elections from Mainwaring 1999: 96-97; data for 1998 and 2002 elections from: http://jaironicolau.iuperj.br/jairo2006/port/cap3/resumo/Cap3_tab2.htm (accessed 04 December 2007); data for 2007-2011from http://www.senado.gov.br/senadores/; this is a representation of the distribution of seats in the Senate in June 2011, rather than a reflection of how the Senate looked just after the 2006 elections.

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Table C. Presidency and Distribution of Seats in the Brazilian Chamber of Deputies, 1986-2011 1986-19901 1990-19952 1995-19993 1999-2003 2003-2007 2007-2011 President Pres. President Cardoso/ President Cardoso/ President Lula/ President Lula/ Sarney/ Collor/PRN PSDB PSDB PT PT PFL (1990-Sept. 1992) Pres. Franco/PRN (Sept. 1992-Dec. 1994) PDS/PPR 6.6% 8.3% 10.0% PMDB 53.6% 21.5% 20.9% 16.2% 14.4% 17.3% PDT 4.9% 9.3% 6.8% 4.9% 4.1% 4.7% PTB 3.5% 7.6% 6.0% 6.0% 5.1% 4.3% PT 3.3% 7.0% 9.6% 11.3% 17.7% 16.2% PFL 23.8% 16.7% 17.3% 20.5% 16.4% 12.7% PL 1.2% 3.0% 2.5% 2.3% 5.1% 4.5% PCdoB 1.0% 1.0% 1.9% 1.4% 2.3% 2.5% PSB 0.2% 2.2% 2.9% 3.7% 4.3% 5.3% PRN 8.0% 0.2% PSDB 7.4% 12.1% 19.3% 13.8% 12.7% PPB 11.7% 9.6% 8.2% PPS 0.6% 2.9% 4.1% All others 8.0% 9.8% 2.1% 4.3% 7.2%

Note: Deputies hold four-year terms. Elections are held every four years for the entire Chamber. These figures reflect election results; party switching and reshufflings occurs throughout the electoral cycle, and continues thereafter. 1 Data for this time period based on a total of 487 Deputies. 2 Data for this time period based on a total of 503 Deputies. 3 Data for this time period forward based on a total of 513 Deputies. Sources: Data for 1986, 1990, 1994 elections from Mainwaring 1999: 96-97; data for 1998 and 2002 elections from Brazilian Chamber of Deputies web site, http://www2.camara.gov.br/deputados/eleicao.html (accessed 04 December 2007); data for 2006 elections from http://pt.wikipedia.org/wiki/Anexo:Lista_de_deputados_federais_do_Brasil_da_53%C2%AA_legislatura (based on data from the Brazilian Chamber of Deputies web site)

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Web Appendix 4.5 Chronology of Public Opinion regarding the Brazilian Judiciary and the Supreme Federal Tribunal (STF), 1985-2004

Key to newspaper abbreviations: FSP (Folha de São Paulo); GM (Gazeta Mercantil); JB (Jornal do Brasil); OESP (O Estado de São Paulo) All translations done by the author.

Source and Date Type of data Data Valence 1985

1986

1987 OESP, 17/01/87, p. 4 Justice’s opinion President of the STF (Jose Carlos Moreira Alves) affirms “that the justice system’s biggest - problem is us, the judges, and all those who work for the system, who cause the slowness in the processing of cases.” He agrees with criticisms that the system is slow and expensive and adds that if judicial services aren’t made free, the costs will be even higher. OESP, 15/05/87, p. 5 Politician’s A Federal Deputy (Paes Landim, PFL) states his opposition to the proposed “extinction” of + JB, 23/05/87, p.5 opinion the STF (i.e., its transformation into a Constitutional Court) since “the Court, along with being hundreds of years old, is the greatest living institution of the republic.” “The judiciary has a culture and Constitutional Courts belong in countries where the judiciary is not independent.” In a separate statement the Deputy suggested that he thinks the STF has done an excellent job carrying out judicial review functions and states his hope that the proposal is not approved by the Constituent Assembly. JB, 19/10/1987, p. 8 Editorial Editorial entitled, "The Job of the Justice System” states opposition to the “extinction” or + disfiguration of the STF, asserting that the STF has been carrying out its job well, including keeping the spirit of the constitution alive during authoritarian regimes. 1988 FSP, 04/11/1988, p. 6 Politician’s A Federal Deputy (Antonio Delfim Netto, PDS) states, “I trust completely in the [STF].” + GM, 04/11/1988, p. B01 opinion OESP, 04/11/1988, p. 3 and 7 1989

1990  (1) GM, 07/06/90, p. 8 Politicians’ Comments regarding a decision of the STF suspending Provisional Measure 190 +  (2) FSP, 07/06/90, p. A08 opinions, jurists’  (1) Federal Deputy and leader of the PMDB in the Chamber of Deputies (Ibsen Pinheiro,  (3) GM, 08/06/90, p. 4 opinions, and PMDB): "It was an historic decision. The government tried, via the legislature, to

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 (4) OESP, 08/06/90, p. 8 editorials diminish the judiciary. Both powers reacted. (He hopes) that the executive’s juridical  (5) FSP, 07/06/90, p. A08 team, after so many mistakes, understands this clean, clear message from the STF.” and JB, 07/06/90, p. 4  (2) Jurist Miguel Reale Junior, who filed an ADIn questioning the constitutionality of  (6) FSP, 07/06/90, p. A08 Provisional Measure 190 for the PSDB, asserts that the STF’s injunction against the MP  (7) FSP, 07/06/90, p. A05 “saved democracy, and with this decision, [helped to prevent] the executive[‘s] use [of] and GM, 07/06/90, p. 8, 11 other arbitrary measures in the future. The government of President Fernando Collor de and JB, 07/06/90, p. 4 and Mello should interpret the ruling not only as a defeat, but also as a lesson. The executive OESP, 07/06/90, p. B05 has to respect the constitution.”  (8)FSP, 07/06/90, p. A05  (3) Editorial entitled, "Constitution and Inflation", considers the issuance of an injunction and GM, 07/06/90, p. 8 and against Provisional Measure 190 by the STF "a reaffirmation of the principles that guide JB, 07/06/90, p. 2 and Brazil’s democratic life.” OESP, 07/06/90, p. 5  (4) Federal Deputy and National President of the PT Luiz Inacio Lula da Silva (PT):  (9) FSP, 07/06/90, p. A04 “beyond representing a defeat for the government, [the ruling] rescues the prestige of the and GM, 07/06/90, p. 8 judiciary which was at risk of looking as ‘worn out’ as the legislature”  (5) Jurist Ives Gandra da Silva Martins: "The decision of the (STF) is irreprehensible and re-establishes the rule of law in the country."  (6) Jurist Celso Bastos: "with the (STF) normally the votes are more pro-government”, but the decision proves that “everything has a limit.”  (7) President of the Unified Workers’ Union (CUT) Jair Meneguelli: it was a demonstration of the independence of the judiciary. “It’s a shock for the government, which many times has gone around the judiciary and the legislature.”  (8) Minister of Justice Bernardo Cabral: decisions of the STF “are not commented on, they are not discussed, they are not analyzed. They are obeyed.” For the Minister, this is “a very old understanding” that is acquired “as one ‘cohabits’ with law.”  (9) President of the Brazilian Bar Association Ophir Cavalcante: "It was a historic decision. It is a message to the president of Brazil that his powers have constitutional limits.” If Congress converts the MP in law, it may be evaluated by the STF. FSP, 23/06/90, p. A06, B13 Union leader’s President of the Unified Worker’s Union (CUT) Jair Meneguelli criticizes the STF for - GM, 23/06/90, p. 007 opinion having delayed in judging the request for injunction by the Union of Public Sector workers OESP, 23/06/90, p. B04 of the Federal District (SINDISEP). "Delaying the decision demonstrates that, unfortunately, the judiciary, as with the legislature, are on their knees before the Emperor.” JB, 28/06/90, p. 3 Politicians’ Comments regarding the STF’s suspension of the effects of Decree 99.300 + opinions  A Federal Deputy and leader of the PSDB in the Chamber of Deputies (Euclides Scalco, PSDB): "Once again, the STF, which is a constitutional court, re-establishes the rights established in the constitution. It was a decision that renewed justice.”

 A Federal Deputy (Vivaldo Barbosa, PDT): "It is a great victory, because it is the second defeat of essential elements of Plan Collor. This means that some brakes are being put on the government.”  A Federal Deputy, and leader of the PDS in the Chamber of Deputies (Amaral Netto, PDS):

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"It is never good to lose. But judicial decisions are obeyed. Naturally, the government will comply.” FSP, 28/06/90, p. B04 Politician’s A Federal Deputy (Luiz Inacio Lula da Silva, PT) demonstrated his satisfaction with a + JB, 28/06/90, p. 003 opinion decision of the STF which suspended President Fernando de Mello’s Provisional Measure 193: "At least there is still justice in this country. The high court did nothing more than follow the constitution, which does not permit salary reductions. Collor’s arrogance was judged, and that is important for the country.” FSP, 06/07/90, p. A01, A02 Editorial An editorial entitled, "Balance of Power” evaluated an injunction issued by the STF that + interrupted parliamentary recess as a “demonstration of institutional vigor.” “Once again, the STF exercises with autonomy and independence its constitutional mission, putting fully in practice... the balancing of the three branches of government” OESP, 06/07/90, p. 1, 3 Editorial Editorial entitled "Democratic Process” comes to an “optimistic conclusion” about the + several times the STF was called upon to decide important issues: "the Court carried out its mission. The STF does not indicate winners it losers, it just re-establishes the law. The rule of law, in this way, is imposed in a short period of time. While it might not seem like much, progress in this respect in the last months has been exemplary.” JB, 22/11/1990, p. 10 Editorial Editorial entitled, "Clean Game" praises a decision of the STF, calling it “a calming example + of the possible and necessary understanding between the branches of government.” "Decisions like this one reveal the existence of an actual juridical order that is not limited to mere formalism, and which gives signs of being attentive to the difficulty of the current political engineering” 1991 JB, 14/04/91, p. 10 Editorial Editorial entitled, "Outside the law" praises a recent STF ruling, calling it an "important X decision” that “underlines the independence of the branches of government…” “It puts the + STF in line to assume its mission of deciding constitutional questions, bringing to the table the larger question of obedience with laws within the real spirit of the constitution, and not simply to satisfy phisologism.” FSP, 19/04/91, p. 101, 104 Politician’s Senator (and former President) Jose Sarney (PMDB) speaks about the history of the STF, its + GM, 19/04/91, p. 7 opinion role as guardian of the constitution, and the conflicts with previous presidents of the JB, 19/04/91, p. 2 republic. “Inherent in my actions [when I was president] were thoughts of the STF, which I OESP, 19/04/91, p. 6 knew would alert me to any illegal paths.” He said he never tried to interfere in judicial decisions.  (1) JB, 27/04/91, p. 10 Editorial Comments regarding a decision of the STF to suspend the injunction that liberated blocked +  (2) OESP, 27/04/91, p. bank accounts /- B03  (1) Editorial entitled "The Battle of the Cruzados" praises the ruling: “What needs to be  (3) FSP, 26/04/91, p. 301 dealt with urgently” is “the greater interest of society: slashing inflation.” If individual and JB, 26/04/91, p. 1, B01 interests prevail, “Brazil could lose, also in the courts, yet another battle against inflation.” and OESP, 26/04/91, p. 1 and  (2) President of the Brazilian Bar Association, Jose Roberto Batochio criticizes the B01 decision in an official note: "it seeks to let the nation know that current domestic

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 (4) JB, 23/04/91, p. 10 conditions are incompatible with the ideas of a democratic rule of law outlined in the first article of the Constitution.” The economic crisis cannot be a pretext for “fracturing the constitutional order;” the Bar Association “does not accept the pressures placed on the judiciary by the government.”  (3) Minister of Economy Zelia Cardoso de Mello: the decision “rescues the calm necessary to continue implementing economic policy and to reinvigorate the economic team (…) a decision in favor of national interests.”  (4) Editorial entitled, "Crucial Decision" calls attention to the political character of the ruling: “the decision of the STF could revive the risk of hyperinflation and uncontrolled unemployment (...) or stop allowing law firms to charge exorbitant amounts for filing such cases.” FSP, 08/05/91, p. 303 Politician’s Head of the Ministério Público Aristides Junqueira Alvarenga affirms that the STF "is + opinion impermeable to lobbies,” commenting on reports that bankers are trying to influence the STF with respect to a particular case. FSP, 09/05/91, p. 101, 102 Editorial Editorial entitled "Limits to the Arbitrary” praises the decision of the STF: “The judiciary + has made it clear that its mission is not to make economic calculations which change with different governments but, instead and above all, to watch over with vigor the observance of the juridical order; without a doubt, it has offered a demonstration of its sovereignty and independence.” The judiciary “has begun to rise up as an instance that defends society, as an institutional antidote against the arbitrary, the excesses, and the prepotency of the state.” GM, 01/06/91, p. 6 Politician’s Federal Deputy and President of the Chamber of Deputies Ibsen Pinheiro (PMDB) says the + opinion STF has protected the constitution. “If some excesses have been noted in the judiciary, they would be sporadic, restricted to first instance courts – with the Supremo there is no problem.” OESP, 07/06/91, p. 1, 3 Editorial Editorial entitled "The Decisions of the Supremo" commenting on a series of recent STF + decisions, says "Happily" the "(STF) has found backing in public opinion and in institutions to independently resolve diverse problems.” OESP, 08/06/91, p. 4 President’s President Fernando Collor de Mello affirms that “a few decisions of STF at least clarify, at + opinion least advance in the direction of a perfect comprehension of constitutional principles. That is very good for democracy.” JB, 16/06/91, p.11 Justice’s opinion President of the STF Sydney Sanches "recognizes that, as in all societal sectors, corruption - has reached some areas of the judiciary, and accepts the criticism that the judiciary is slow. He admits that the appointment of relatives of the president damages the image of the STF (…) pointing out that he is not referring to Justice Marco Aurelio Mendes de Faria Mello (cousin of President Fernando Collor de Mello), who has not always voted in favor of the government.” OESP, 29/06/91, p. 3 Editorial Editorial entitled "Justice of Solomão" comments on a decision of the STF denying an +/- injunction in an ADIn initiated by the Brazilian Socialist Party (PSB) against the bank freeze: "It cannot be denied that the STF acted with great prudence and more than a bit of realism. Nonetheless, it is relevant to ask if with this “solomonic” decision, the Court did

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not leave the Executive space to use and abuse unconstitutional measures, hiding behind fait accompli (…) It would be a good idea if some day the STF made it clear that the confiscation was illegal and, at the same time, clarified that those who question the unconstitutionality of a measure not wait months to activate the Supremo.” FSP, 13/07/91, p. 7 Business President of the Industries’ Federation of São Paulo (FIESP) praises the independent position + opinion assumed by the judiciary, which on various occasions has struck down governmental measures considering them unconstitutional. “The recent decisions of the [STF], in response to illegal acts of the Executive, demonstrate its importance for public liberties and aggrandize its position as an economic power.” JB, 17/08/91, p. 001 Politician’s Minister of Justice Marcilio Marques Moreira criticizes the slowness of the judiciary - opinion 1992 OESP, 21/04/1992, p. 3 Editorial Editorial entitled "The Majesty of the Supremo" evaluates the appointment of Ex-Justice +/- Francisco Rezek to the STF, suggesting it "brings up a delicate problem – whether President Fernando Collor de Mello is "contributing inadvertently to diminishing the majesty of the Supremo." Even though Justice Rezek “is young enough that he will have many years to shine on the Court, the image will remain that the president of the republic has the Court as a place to go when he needs people, and then he returns them when he no longer needs them. This situation, if it persists, will always work against the majesty of the STF.” OESP, 30/12/1992, p. 3 Politicians’ Editorial entitled “The Law and the Political Tribunal” points out that the Trial of Ex- + opinion President Fernando Collor de Mello by the Senate was political, rather than juridical. “What /- we saw was the procedural order once again broken; and even sadder, broken by the president of the STF, Justice Sydney Sanches.” “By bending laws, as was done throughout this sad process, the political forces that guided it give the impression that they wish to suggest that Brazil never had another corrupt leader and will never again. If this was the intention of those who guided the process, institutions are not safe – either because the system that allows corruption remains untouched, or because we may again see ’caras- pintadas’ in the streets clamoring that they are, like Louis the XIV, the State, and they can make law.” 1993 NP 02-R-521 – OESP, Real Editorial Describing the overall activity of the STF, asserts that congressmen have begun to talk about + ameaça ao STF, 09/1993 external control of the judiciary because “the STF’s decisions are too independent… the justices of the STF doesn’t always decide according to the loud public opinion or the

majority preferences in Congress...”  (1) OESP, 17/09/1993, p. Editorials Comments on the STF ruling that suspended levying of the Provisional Tax of Financial + A01, A03 Transactions (IPMF):  (2) FSP, 16/09/1993, p.  (1) Editorial entitled "A decision against the IPMF": serves as a "lesson to everyone who 101, 102 has gotten used to saying that the justice system is separate from fiscal difficulties… the

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justice system has, perhaps more than [elected leaders], a sense of what the real interests of the State are.” “The government’s persistent commission of the same error indicates that either it cares not about public opinion, or is convinced that it can legislate in an authoritarian style.”  (2) Editorial entitled "Rest in Peace" suggests that “it is a lesson for the executive and the legislature.” “The lesson, at base, is simple: it is no longer possible to make decisions without evaluating their implications, of a juridical, and psycho-social nature.”  (1) JB, 08/10/1993, p. 10 Editorial Comments on a decision of the STF cancelling an injunction issued by a single justice that +  (2) FSP, 08/10/1993, p. impeded the opening of a broad constitutional reform process: 101, 102  (1) Editorial entitled "Vote of Knowledge” praises the decision, which “resolves the tense crisis between the legislature and the judiciary. The question, at heart, had to do with limiting the area of the legislature that escapes from examination by the judiciary. This area is, precisely, the area of internal procedures…” “…matters of the internal functioning of Congress – decisions of its governing boards, interpretations by its leaders, and relations among parliamentarians – escape entirely the reach of the judiciary.” The STF also “made it clear that the limit established by Congress in terms of constitutional reform will always be subject to the jurisdictional control of the highest court. What we have here is an establishment of limits of action of those reforming the constitution, which are not a constituent assembly, and an attempt to establish limits on what is touchable, and untouchable, in the constitution.”  (2) Editorial entitled "Reform Unimpeded” praises the decision, which opens that way “for the initiation of the constitutional reform process.” “The balanced reaction on the part of the STF en banc reinvigorates the process and reinstalls calm in the question of inter- branch independence.” “The decision of the Supremo also has a calming effect on the general populace, since it buries the doubt raised by the injunction regarding whether one branch has sufficient power to impede a process of such broad reach and impact as constitutional reform. The most encouraging, in any event, is that the episode ended in the quickest, calmest way possible, reducing the damage caused by the delay and commotion…”  (1) JB, 17/12/1993, p. 10 Editorials, Comments regarding the STF decision to deny Collor’s political rights for 8 years: +/-  (2) FSP, 17/12/1993, p. Politician’s  (1) Editorial entitled, "Page Turned" praises the decision of the STF: “The nation 101, 102 opinion recognized itself in the decision.” The trial of Collor “reconciles the Brazilians with the  (3) JB, 08/12/1993, p. B01 judiciary.” Also, “it is a clear indication that we are becoming a democracy that is and OESP, 08/12/1993, p. guaranteed by its legal measures and resources. Never has a president been impeached A06 and punished in such a legal and dignified way. We are witnessing the end of the cycle of  (4) FSP, 08/12/1993, p. pronouncements, suicides, and behavior that does not follow normal laws and 104, A03 procedures.”  (5) OESP, 08/12/1993, p.  (2) Editorial entitled, "Relief" praises the decision of the STF: it was "one more piece of A07, B07 good news in the sense of making national political activity more ‘moral.’” “It is very welcome since it demonstrates that, in spite of a long tradition of impunity, even the

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occupants of the most important positions are subject to the healthy rigors of law.”  (3) Federal Deputy and leader of the PDT in the Chamber of Deputies Luiz Salomão (PDT) does not understand why "the (STF) allowed technical formalism to prevail, even going against the national will, if in various cases the political aspect has been preponderant in its final decisions.”  (4) National President of the PT Luiz Inacio Lula da Silva: "The decision was regrettable. The legislature is already without credibility, as is the executive, and now the judiciary as well.”  (5) Governor of São Paulo Luiz Antonio Fleury Filho (PMDB): “I respect the STF, but the truth is that the population expected a different outcome, and the result will augment the lack of credibility in institutions. That is the negative part.” GM, 17/12/1993, p. 4 Editorial Editorial entitled "Untouchable corporatist privileges” criticizes the judiciary and the - legislature for not collaborating with the policy of cost-cutting defended by the economic team, saying, in this decisive hour, the judiciary floats “above national reality,” the executive, feeling pressured, vacillates, and the legislature is incapable of doing unpopular things. 1994 NP 01-R-686, OESP, 01/94, Editorial Refers to the popular impression that the judiciary is “corporatist” and that judges only take -/+ Destaque care of themselves and do not think of the more general interests of the country, and argues that what characterizes the judiciary is esprit de corps, not corporatism. GLO, 26/01/1994, p. 6 Editorial Editorial entitled, "Promising Dialogue" speaks of the “islands of autonomy” in the - judiciary: the freedom with which lower courts act, without any worry of the vertical integration of the judiciary (or for law), and the slowness of the justice system.  (1) FSP, 22/03/1994, p. Editorials, Comments on a decision of the STF and of the Chamber of Deputies to readjust their salaries - 101, 102 in contradiction to the economic plan of the government:  (2) GLO, 22/03/1994, p. 1  (1) Editorial entitled, "Tension among the three branches” criticizes “the salary  (3) JB, 22/03/1994, p. 10 adjustments that the STF and legislature self-awarded, as they will expose the country,  (4) GLO, 18/03/1994, p. 1 finally, to still unknown institutional conflicts. The salary elevation opens a precedent for the civil service, which could become a snowball of salary requests in the judiciary which, today, it would be difficult for the judiciary to deny.”  (2) Editorial entitled, "I will not pay” criticizes the decision: “...the salary privileges that those at the top of the judiciary gave themselves opened the way for Congress to do the same. Both powers contradicted the spirit of the law and demonstrated their lack of sensibility in the face of the suffering of the populace (…) What made the crisis particularly grave was the evidence that the guardians of the regime are morally anesthetized by the climate of arrogance in which the ‘nomenklatura’ installed in Brasília (DF) lives, paradise of corruption”  (3) Editorial entitled, "Time to negotiate” says, “Citizens witness with dissatisfaction that the legislature and judiciary, so slow when it comes to attending to the demands of the

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nation, and quick when it is time to decide about their own cases.”  (4) Editorial entitled, "A new symptom” suggests that what is needed is "a ‘reapproximation’ with the population – a new harmony, which includes equal doses of trust in the country disposition to make sacrifices.” FSP, 25/03/1994, p. 101, 107 Event Brasilia, (DF) – Agents of the Federal Police, on strike, engage in protest before the STF to + show that they are ready to engage in insubordination in order to comply with an eventual order, by the STF, of prison against the authorities of the executive. Marcenildo Caldas, President of the Union of Federal Policy says, "If the STF so demands it, we will arrest… the president of the Bank of Brazil and … the Director-General of the Federal Police." GM, 21/05/1994, p. 4 Editorial Editorial entitled "In Defense of the Democratic Regime” praises two decisions of the STF: + saying they reveal the institution’s recognition that its mission is to maintain and sustain the democratic regime, preserving its pureness and fending off threats that are raised against it.” “What the STF said this week was in defense of society.” FSP, 28/07/1994, p. 110 Politician’s Luiz Inacio Lula da Silva, PT presidential candidate, criticizes the STF and defends external +/- GM, 28/07/1994, p. 012 opinion control of the judiciary. He cites as an example the trial against Ex-President Fernando JB, 28/07/1994, p. 1, 5 Collor de Mello. "The case is still without resolution today because the STF never decides anything, it just issues injunctions. I am in favor of external control of the judiciary. The Supremo cannot be untouchable as it is today. People speak poorly of the executive and the legislature, but nobody speaks poorly of the judiciary. The press and the political class are afraid that afterwards, they will be at the mercy of some judge. They are human. They cannot be as powerful as they are now.” 1995 Latinobarómetro survey of Public opinion  Survey of 10,000 citizens in 8 Latin American countries + Latin American Countries  Trust in the judiciary o Brazil: 18.2% of people had a lot of trust in the judiciary, and 20.6% had some trust (second in terms of “a lot of trust”) o Argentina, 5.8% of people had a lot of trust in the judiciary, and 27.8% had some trust (seventh in terms of “a lot of trust”) Werneck Vianna et al. 1995 Professional  Written survey of 3,927 judges (sitting and retired) + opinion  Opinion regarding appointment process of the STF – favorable (66.9%); unfavorable (33.1%) Sadek 1995 Professional  570 judges interviewed (529 from “common justice” and 41 from federal justice) from + opinion five states  Evaluation of different branches of judiciary (sum of evaluations “excellent” or “good”):

STJ (69.9%), Common State Justice System (59.5%), STF (56.7%), Electoral justice system (56.3%), Federal justice system (41.0%), Labor justice system (23.3%)  Percent that evaluated the STF positively (excellent or good) in terms of: safeguarding the constitution (64.9%); safeguarding the political balance between the powers

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(52.5%); protecting the new guarantees established in the Constitution of 1988 (36.8%); reconciling the juridical order with the imperative of combating inflation (20.7) NP 03-R-36, OESP, 05/1995, Editorial Quote, regarding a speech Justice Sepúlveda Pertence made when assuming the presidency + “A voz do judiciário” of the STF: “Justice Pertence did not need to speak of the great acts of the judiciary: the names that he cited, his very presence as head of the high court, let alone the decisions of the STF that have challenged and will continue to challenge elected leaders are more than enough proof that we have before us a power that deserves the respect of the nation…” “The judiciary will take part in institutional reform, and its participation… will guarantee that the changes will remain in line with the law.” NP 03-R-54, OESP, 09/1995, News story Refers to the “legitimacy crisis” the judiciary is undergoing due to the fact that while the - “Justiça precisa de Constitution of 1988 “democratized” access to justice, it failed to make the structural independência, diz Pertence” changes necessary for the judiciary to deal with greater demand (while the judiciary maintains direct daily contact with the citizenry). NP 03-R-59, OESP, 09/1995, News story Series of articles regarding the efforts to impose “external control” on the judiciary due to - “Para Pertence, controle politicians’ discontent with how it functions (which, some suggest, is due to the judiciary externo é ‘retrocesso’” and the high court in particular issuing strong challenges to the interests of elected leaders) 1996 Latinobarómetro survey of Public opinion  Survey of 20,000 people in 17 Latin American countries (plus Spain) + Latin American Countries  Trust in the judiciary o Brazil: 12.0% had a lot of trust in the judiciary, and 29.3% had some trust; fourth in terms of “a lot of trust” o Argentina: 3.9% had a lot of trust in the judiciary, and 19.2% had some trust; 15th in terms of “a lot of trust”  In what institutions/actors do you believe o Brazil: 18.5% indicated “judges” (fourth highest percentage) o Argentina: 8.3% indicated “judges”(10th highest percentage) NP 03-R-205, OESP, 12/96, Professional Several jurists support criticisms of the government made by the President of the STF; a + “Juristas aprovam críticas de opinion former Minister of Justice suggested that the elected branches “were not sufficiently evolved Pertence” to understand the importance of the judiciary” NP 03-R-206, OESP, 12/96, Editorial Suggests that proposal for the reform of the judiciary was born in the judiciary itself after it - “O papel político do had become obvious that the image of the judiciary was associated with slowness and Supremo” inefficiency 1997

Latinobarómetro survey of Public opinion  Survey of 20,000 people in 17 Latin American countries (plus Spain) + Latin American Countries  Percentage of people who mentioned courts as very important for the country o Brazil: 55.6% (in eighth place) o Argentina: 66.6% (in third place)  Trust in the judiciary

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o Brazil: 21.4% had a lot of trust in the judiciary, and 22.4% had some trust; second in terms of “a lot of trust” o Argentina: 4.3% had a lot of trust in the judiciary, and 16.2% had some trust; 17th in terms of “a lot of trust” NP 03-R-260, OESP, 04/97, Civil society Representatives of the MST go to the STF to state their dissatisfaction with the judiciary, - “Trabalhadores rurais opinion saying that it worked very quickly when it was going to decide against the interests of the criticam, no STF, morosidade MST, but was very slow in challenging the powerful; President of the STF agreed that the da justiça” judiciary was “old, poor, and incapable of dealing with the explosion in demand since the promulgation of the 1988 Constitution.” 1998 Latinobarómetro survey of Public opinion  Survey of 18,000 people in 17 Latin American countries + Latin American Countries  Trust in the judiciary o Brazil: 16.5.% had a lot of trust in the judiciary, and 24.8% had some trust; second in terms of “a lot of trust” o Argentina: 5.4% had a lot of trust in the judiciary, and 14.2% had some trust; 12th in terms of “a lot of trust” NP 03-R-370, OESP, 04/98, Editorial Refers to the “crisis of the judiciary” but notes that it is the result of dynamics that require +/- “A justiça no limite do “the impossible” from the judiciary (noting that the government overuses the judiciary), and impossível” says STF presidents have done what they can in terms of encouraging judicial reform. NP 03-R-420, OESP, 11/98, Editorial Praises the STF for sending the executive a proposal to cut its budget by 20.3% in 1999, + “O exemplo do STF” suggesting the gesture should be a model for other parts of the government. 1999 Public opinion survey Public opinion  92% of Brazilians consider the justice system to be slow. - commissioned by the Ministry of Justice and carried out by IBOPE, results reported in OESP, 24/03/1999 NP 03-R-480, OESP, 04/99, Professional Experts assert that the judiciary is the branch least responsible for the crisis of the judiciary - “Lentidão e burocracia opinion (but also the least transparent of the three) and that the judiciary is slow due to an excessive comprometem a Justiça” number of cases and excessive formalism; and asserts that there is a general lack of confidence in the judiciary and a feeling that the judiciary fails to do a good job. Survey of the Brazilian Public opinion  Only 30% of those involved in a justiciable conflict go to the judiciary to resolve it - Institute of Geography and Statistics (results reported in NP 03-R-480, OESP, 04/99, “Lentidão e burocrácia comprometem a Justiça”)

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2000 Latinobarómetro survey of Public opinion  Survey of 18,000 people in 17 Latin American countries + Latin American Countries  Trust in the judiciary o Brazil: 12.0% had a lot of trust in the judiciary, and 23.4% had some trust; third in terms of “a lot of trust” o Argentina: 7.1% had a lot of trust in the judiciary, and 20.5% had some trust; 10th in terms of “a lot of trust”  Indicated “judiciary” as first response when asked what institutions have the most power o Brazil: 14.5% (highest response rate) o Argentina: 4.0% (ninth highest response rate)  Believe that everyone has equal access to justice o Brazil: 11.0% (lowest response rate) o Argentina: 11.7% (16th highest response rate) Survey of judges carried out Professional  738 judges from first instance to superior courts in state and federal judiciary were + by IDESP (results reported in opinion surveyed (orally and in written form) Castelar Pinheiro 2003 and  Award the STF the ability to make binding summary decisions (46.0% in favor, 6.5% Sadek 2003) found the issue irrelevant, 33.5% were against)  On a scale of 1-5, scores of the STF on agility (2.38), cost (3.21), expenditures (2.99), predictability (3.34), impartiality (3.56) Castelar Pinheiro 1998 and Survey of  National survey (by written questionnaire) – 602 respondents + Castelar Pinheiro 2000 business people  General evaluation of the judiciary o Speed (Excellent – 1.2%, Good – 0%, OK – 8.1%, Bad – 90.8%) o Impartiality (Excellent – 1%, Good – 24.6%, OK – 44.4%, Bad – 21.9%) o Cost (Excellent – 1.2%, Good – 13.8%, OK – 38.5%, Bad – 26.2%)  Evaluation of different parts of judiciary – percent that considered each branch excellent or good: Labor (11.6%), Federal justice (12.9%), Common State justice (9.0%), STF (24.9%), Public Prosecutor’s Office (13.3%), Notaries (6.9%)  Cost of using the judiciary: very high – 10.1%, high: 57.1%  Benefits of using the judiciary surpassed costs: 59.4%  Comparison with Argentina – 0.0% believe the Argentine judiciary is much better; 9.7% believe it is better IDB report (results published Public opinion  Percentage of the population that does NOT trust the judiciary (58%) (score for + in La Nación, June 2000) Argentina is 78%)

NP 04-E-178, OESP, Professional Well-known economist suggests that if the STF makes a certain decision on an important + 12/2000, “A hora do opinion case it will consolidate its independence and credibility, while if it makes the opposite Supremo” decision, it will look just like the Argentine Supreme Court which, due to its constant deference to the government, has lost popular trust.

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2001 Latinobarómetro survey of Public opinion  Survey of 18,000 people in 17 Latin American countries + Latin American Countries  Trust in the judiciary o Brazil: 18.9.% had a lot of trust in the judiciary, and 21.3% had some trust; first in terms of “a lot of trust” o Argentina: 5.2% had a lot of trust in the judiciary, and 16.5% had some trust; 10th in terms of “a lot of trust”  Indicated “judiciary” as first answer when asked about government institutions that suffered from corruption o Brazil: 2.0% (12th highest response rate) o Argentina: 8.7% (third highest response rate)  Indicated “judiciary” as first response when asked what institutions have the most power o Brazil: 20.2% (highest response rate) o Argentina: 4.1% (14th highest response rate) 2002 Latinobarómetro survey of Public opinion  Survey of 18,500 people in 17 Latin American countries + Latin American Countries  Trust in the judiciary o Brazil: 12.4% had a lot of trust in the judiciary, and 20.1% had some trust; third in terms of “a lot of trust” o Argentina: 0.9% had a lot of trust in the judiciary, and 7.8% had some trust; 17th in terms of “a lot of trust” NP 04-R-412, OESP, Professional Well-known jurist suggests the STF is “made up of highly distinguished jurists and + 11/2002, “O STF e as ações opinion statesmen of long and varied judicial and administrative experience whose decisions… are de improbidade” consistent and absolutely above suspicion” and asserts that no other court would do the job as well. 2003 Latinobarómetro survey of Public opinion  Survey of 18,500 people in 17 Latin American countries + Latin American Countries  Percent that responded “judges” when asked in whom they believed o Brazil: 25.8% (highest response rate) o Argentina: 5.6% (14th highest response rate)  Trust in the judiciary o Brazil: 12.7% had a lot of trust in the judiciary, and 30.1% had some trust; first in terms of “a lot of trust” o Argentina: 1.9% had a lot of trust in the judiciary, and 14.3% had some trust; 12th in terms of “a lot of trust”  Degree to which the ethical and moral standards of judges have improved o Brazil: 7.6% believed had improved a lot, 40.4% believed had improved some; first

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in terms of “improved a lot” o Argentina: 0.6% believed had improved a lot, 6.7% believed had improved some; 17th in terms of “improved a lot”  Percent that mentioned courts as very important institutions o Brazil: 60.1% (third highest response rate) o Argentina: 55.6% (fifth highest response rate)  Agreement with statement “judicial systems punishes those who are guilty” o Brazil: 24.0% strongly agree, 1.4% agree (first in terms of “strongly agree”) o Argentina: 1.4% strongly agree; 14.6% agree (17th in terms of “strongly agree”)  Agreement with statement “justice takes a while, but it arrives” o Brazil: 25.4% strongly agree, 28.1% agree (first in terms of “strongly agree”) o Argentina: 4.7% strongly agree; 28.8% agree (12th in terms of “strongly agree”) Toledo y Associados (a Public opinion  1,700 interviews in16 state capitals. - public opinion organization);  Highlights “the lack of knowledge of the population about the functioning of the judiciary national poll commissioned and the lack of trust in the judiciary, the public prosecutor’s office, and lawyers. by the OAB carried out in  “Of those interviewed, 84% said that the judiciary had some negative aspects.” September 2003  57% of respondents didn’t know the difference between what a prosecutor does and what a judge does.  39% of those interviewed “couldn’t say anything concrete or correct about the difference between a lawyer and a judge.”  The judiciary has the least “total trust” of the seven institutions researched; 44% of respondents said they did not trust the judiciary; 39% trusted, 16% had no opinion  86% of Brazilians thought judicial reform was very necessary World Economic Forum Public opinion  On a scale of 1-7, Brazil’s judiciary scores 4.2 (Argentina’s scores 1.5) + survey regarding judicial independence Public opinion survey by Public opinion  Approximately 2000 Brazilians in 24 states - CNI/IBOPE (results reported  March/May 2003 – percentage of Brazilians with confidence in the judiciary – 14.9% in NP 04-R-494, OESP,  June/July 2003 – percentage of Brazilians with confidence in the judiciary – 9.7% 07/2003, “Governo tem nova queda de popularidade”) NP 04-R-449, OESP, Politician’s President Lula refers to the “black-box” of the judiciary suggesting that it is closed and - 04/2003, “Crítica é um opinion secretive and exempt from control desserviço à sociedade, reage

Mello” FSP (online), Deputado Civil society A leader of the MST comments, "the Brazilian judiciary, weakened in public opinion - petista coloca voto de organization because of its high salaries and perks, has its judgments ethically contaminated due to ministra sob suspeição,” opinion nepotism” 20/08/2003

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NP 04-E-549, OESP, Politician’s Head of Brazil’s Institute of Colonization and Agrarian Reform says in two articles that the - 10/2003, “Presidente do opinion judiciary is one of the hindrances to agrarian reform in the country (because it protects large INCRA diz que Judiciário é landowners) entrave a reforma” and NP 04-R-591, OESP, 01/2004, “Para Incra, Judiciário emperra reforma agrária” FSP (online), “Blitz contra Justice opinion President of the STF, Maurício Corrêa, commenting on a corruption scandal in the judiciary, - juices acontece em momento says, “what is happening, even though there is a satisfactory result in the end, is bad, because de ‘desgaste’ diz STF,” it resonates through the judiciary whose public image is already ‘worn out’” 31/10/2003 NP 04-R-580, OESP, Editorial “The lack of transparency in the judicial machinery represents one of the most serious causes - 12/2003, “O ‘visual’ do of the ‘worn out’ image of our judiciary.” “It is true that the judiciary’s image has been Judiciário” compromised for quite some time due to factors that are not all the fault of judges...” it is “the slowness and ‘jammed-up’ nature of the Brazilian justice system that make the judiciary look so bad in the eyes of the people…” “society has been shocked with innumerable cases in which injunctions were ‘sold’ and there was evidence of ‘trafficking’ and influence in the decisions…” 2004 Latinobarómetro survey of Public opinion  Survey of 19,500 people in 18 Latin American countries + Latin American Countries  Trust in the judiciary o Brazil: 16.7% had a lot of trust in the judiciary, and 31.2% had some trust; second in terms of “a lot of trust” o Argentina: 4.5% had a lot of trust in the judiciary, and 21.1% had some trust; 14th in terms of “a lot of trust”  Percentage that said that the poor functioning of the judiciary was one of the main causes of delinquency in the country o Brazil: 31.4% (sixth highest response rate) o Argentina: 58.2% (highest response rate) Survey carried out by Public opinion  Focus groups with Brazilian citizens of all ages in four states in March 2004 +/- Association of Brazilian  The general image of the judiciary is, principally, a strong, distant, mysterious entity, Magistrates insulated and static, and slow (that is, antiquated, closed, extremely bureaucratic and involving little mobility).  In general, those interviewed have little familiarity with the judiciary.  The idea of corruption, although somewhat associated with the image of the institution, is not associated with all judges.  Ideas associated with the judiciary: impunity, inequality, corporatism. NP 04-R-602, OESP, Professional President of the Brazilian Bar Association implies that judges think the judiciary exists for -

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02/2004, “Para OAB, opinion them, and not for the Brazilian people controle deve ser até mais amplo” NP 04-R-615, OESP, International The United Nations calls for a drastic reform of the Brazilian judiciary – releases a report on - 02/2004, “ONU pede opinion human rights in Brazil that affirms that “there are serious doubts about the independence of ‘reforma drástica’ na Justiça the Brazilian judiciary” and suggests sending a special envoy to Brazil to study the brasileira” independence of judges and lawyers. Suggests courts should be completely reformed. (Note: refers mostly to police abuse.) NP 04-R-662, OESP, Professional Former Minister of Labor and Former President of the Superior Labor Tribunal describes the - 02/2004, “Reforma e opinion need to reform the judiciary as an “urgent issue” for the country, calling the judiciary slow desburocratização do and not receptive to changes in routine; suggests that the judiciary has come unhinged from Judiciário” the world, and needs to be brought back to “real life.” NP 04-R-674, OESP, Politician’s Minister of Justice affirms that there is corruption in the judiciary and that reform will help - 07/2004, “’Há corrupção opinion improve the popular image of the institution – which is that it is elitist, corrupt, slow, and também no judiciário” inefficient. 2005 Latinobarómetro survey of Public opinion  Survey of 20,000 people in 18 Latin American countries + Latin American Countries  How much in agreement with the statement that the justice system punishes those who are guilty o Brazil: 19.6% strongly agree; 23.7% agree (first in terms of “strongly agree”) o Argentina: 5.7% strongly agree; 19.7% agree (11th in terms of “strongly agree”)  How much in agreement with the statement that “justice takes a while, but finally happens” o Brazil: 21.0% strongly agree; 28.3% agree (first in terms of “strongly agree”) o Argentina: 5.3% strongly agree; 32.87% agree (13th in terms of “strongly agree”)  Trust in the judiciary o Brazil: 15.7% had a lot of trust in the judiciary, and 25.2% had some trust; second in terms of “a lot of trust” o Argentina: 4.7% had a lot of trust in the judiciary, and 22.1% had some trust; 14th in terms of “a lot of trust” Survey of members of the Professional  Based on written survey responses by 3,258 judges _ Association of Brazilian opinion  Speed of the STF: 13.1% (good); 29.3% (OK); 45.3% (bad) Magistrates (Reported in  Expenses of STF: 15.7% (good); 26.2% (OK); 17.9% (bad) Sadek 2005)  Impartiality of STF: 28.1% (good); 26.3% (OK); 31.7% (bad)

 Overall evaluation of the STF, on a scale of 1 (bad) to 10 (good) o independence from the executive (3.9) o independence from Congress (5.3) o relation with other superior courts (6.5)

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o relation with rest of judiciary (5.1) o relation with class organizations (5.0) o independence in relation to private economic forces (4.8) o agree with present system for appointing (1.5) 2006

2007 Association of Brazilian Public opinion  2,011 phone interviews of Brazilians + Magistrates (Associação dos survey  52.7% trust the STF, 36.9% don’t trust the STF, and 10.4% were not able to evaluate. Magistrados Brasileiros,  In answer to the question, “how much do you trust these Courts” (index, 1-25): electoral AMB) survey done in 2007 justice system (10.6); small-claims courts (23.6); STF (20.5); labor justice system (19.2)  51.7% know what the difference is between the Public Prosecutor’s Office and the judiciary while 43.6% do not know what the difference is, and 4.7% did not give an opinion IBOPE Inteligência public Public opinion  33% trust the judiciary, 64% do not trust, and 3% have no opinion. - opinion poll (results reported  Those who were most critical were those with the most education, residents of capital 23 August 2007) cities, and those of higher socio-economic level, who feel the most insecure and are most likely to be victims of violence.

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Web Appendix 4.6 Brazilian STF Internal Structure and Case Review Procedures

Note: Unless otherwise indicated, all of the information in this appendix was garnered during nine interviews with high court clerks (assessores) during 2005: one with AS-01; three with AS- 02; three with AS-03; one with AS-04; and one with all of the clerks of one justice (AS-05). These respondents explained how the Court is structured, and described the trajectory of the main types of cases the STF considers from the moment they entered the Court until a decision on them is published. Clerks often turned to the manual that outlines the STF’s internal procedures (Regimento Interno), to the constitution, and to two other laws to confirm procedures, suggesting that these documents guide how the high court operates.1

Internal Structure

Throughout the time period of interest, the Court has had 11 members. The Court is divided into two chambers (of five justices each; the president belongs to neither chamber). Each justice has a chief of staff (chefe de gabinete), who generally keeps the justice’s schedule and performs other administrative tasks, and five clerks. The clerks carry out different duties in each justice’s gabinete, according to the justice’s wishes. Clerks must have a law background, but are not hired on the basis of a public competition: justices can hire whomever they would like. In the past justices used to choose members of the administrative staff who stood out as excellent to be their clerks; since the 2000s, clerks are less often from within the Court, and are more frequently young super-stars with strong academic backgrounds.2 Relatedly, while traditionally clerks stayed with the justice who hired them through his entire time on the Court, more recently they stay less time in the Court. In some justices’ gabinete, clerks are mainly involved in writing the relatório (case summary) and less involved in developing draft opinions (AS-01); in others clerks are more involved in the research and writing of decisions (AS-02-03). In most cases they perform triage before justices see cases, pointing out when important cases have arrived.

Each justice’s gabinete also has 20-some additional staff (servidores) who are charged, for example, with identifying and organizing similar and identical cases (given the immense number of repeat cases the Court receives), applying “model decisions” to repeat cases, and providing additional administrative support. These staff members tend to work in a justice’s gabinete for less time. They must pass a public, competitive test in order to become part of the “cuadro” (the broader groups of STF personnel), and then clerks solicit them to work in a particular justice’s gabinete. They have no impact on the formulation of relatórios or decisions. Finally, most gabinetes have a few other administrative staff from outside the STF personnel pool (tercerizados).

1 The two laws outline the procedures for the three types of abstract review mechanisms: Law 9868 (1999) explains the procedures for ADINs (Ações Diretas de Inconstitucionalidad) and ADCs (Ações Declaratórias de Constitucionalidade) and Law 9882 (1999) explains the procedures for ADPFs (Argüições de Descumprimento de Preceito Fundamental). 2 In this sense, then, the Brazilian high court may somewhat follow the U.S. model.

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Case Review and Resolution Procedures

The Court must rule on every case filed with it – even if that ruling is simply a dismissal on the basis of some technical flaw. Every case that arrives to the Court is immediately randomly distributed (by sorteio) by a computer system to one of the ten justices who are not currently president of the Court,3 with the goal of distributing approximately the same number of each different type of case to each justice.4 The justice assigned a particular case is the relator for that case. The relator is charged with writing a descriptive summary of the case (a relatório) if the case is going to be decided by a chamber or by the plenário (full Court), and writing an opinion (if he will decide the case by himself) or a draft opinion (if the case will go to a chamber or to the full Court). Such draft opinions are not necessarily the final opinion on the case and can be overruled by the chamber or the whole Court.

In terms of external inputs on the justices’ decision-making, justices very rarely request outside or technical assistance when they are deciding cases.5 Nonetheless, in particular with complicated, salient cases, the parties to a case may contract noted jurists to solicit “thoughts” or recommendations about cases (pareceres), or the lawyers for the case may distribute short written reports or additional information to the justices (memoriais); in abstract review cases, the relator may request or interested individuals may provide amicus curiae briefs (which tend to be more technical).6 It is at the discretion of the relator whether and how all such materials are considered and/or included as part of the case (and there is much divergence among justices).

Relatores are responsible for indicating that their cases are prepared and ready to be considered by a turma (chamber) or the full Court (liberando para julgamento); the relator has discretion with respect to how long he takes to evaluate his cases and declare them ready. This advisement places the case on the official list of cases ready for judgment (the pauta).7 In certain cases, relatores make the original petition and the relatório available to the other justices.8 Once cases

3 The computer does not distribute cases that fall in the original jurisdiction of the president of the Court: those in which a judge from one jurisdiction requests that his ruling be enforced in a different jurisdiction (cartas rogatórias); cases regarding intervention in one of the states of the union (intervenção federal); confirming judicial decisions of foreign courts so they are valid in Brazil (sentença estrangeira); cases involving requests that an injunction or decision issued in a certain type of summary case (mandado de segurança) be canceled under risk of harm to public order, health, security, or the economy (suspensão de segurança); and dismissal of a group of like cases (homologação de desistência). 4 Only the Court president and vice-president have access to the system. Cases have been distributed by computer since approximately 1994. Prior to that the system was manual and cases were distributed in a more formal procedure. A team of analysts monitors the computer. The conditions under which the computer is by-passed differ somewhat for each type of case; cases are not distributed by computer, for example, when the Court receives repeated cases from the same party or repeated cases with the same content (here the later cases are assigned to the same justice as the earlier cases). 5 Some clerks suggested that doing so would be tantamount to suggesting that the case is being decided on some basis other than the constitution, which the justices are loathe to acknowledge occurs. 6 The institution of amicus curiae allows justices to solicit technical input on abstract review cases from any organ or entity. It was established in 1999 by Law 9.868, and the high court has been struggling to regulate its use since then. The intent was to open up the deliberation process on abstract review cases to more parties, and in fact the use of amicus curiae is growing: as many as 70 briefs have been filed regarding some cases. Only lawyers can submit amicus curiae briefs, and they often charge a good deal to write one. 7 Periodically, the list of all of the cases on the Court’s pauta is published in the Diário Oficial. 8 Making the relatório available to other justices is obligatory in abstract review cases.

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are on the pauta, they can be placed on the Court’s actual schedule for consideration at any moment by the president. The president has discretion in organizing the schedule for the plenário (i.e. choosing among all of the cases that have been liberados to determine what cases will be decided when, and in what order).9 Nonetheless, all of the cases that have been liberados are taken to a turma or to the plenário and decided at some point.10 There are no limits on the amount of time the Court can take to issue a decision on any case.

Despite these common elements, different sorts of cases arriving to the high court take different “routes” through the Court. The types of cases most often filed with the Court, as well as the main type of abstract review case, are discussed here.

With respect to concrete review, the high court receives more recursos extraordinários (REs) and agravos de instrumento (AG) than any other type of case. With REs (and most other cases in the concrete review category), the relator may decide the case on his own (that is, issue a decisão monocrática) if there is already a decision by the full court on that exact type of case or if the Court has already written a “súmula” (a general statement about how the Court understands and interprets a particular theme)11 for cases of that type.12 If there is no established jurisprudence, the justice must elevate the case to the chamber (turma) of which he is a member to decide, or to the whole court (the plenário) if the case might have very serious repercussions or if the decision that the justice (or, eventually, the chamber) thinks is correct contradicts the Court’s previous jurisprudence or a “súmula.”13 The relator first considers the technical aspects of the case, and then evaluates its substantive elements to write the relatório and the (draft) opinion.14 Requesting the recommendation of the Procurador Geral da República (PGR, the head of the Public Prosecutor’s Office, Ministério Público) is at the discretion of the justice.15 REs that seem straightforward or that the Court already evaluated are rarely sent to the PGR, and

9 The order in which cases are decided need bear no relationship to how long cases have been in the Court. 10 The Court’s internal manual, the Regimento Interno, establishes the general order in which different classes of case are decided in the turmas and plenário. Within each class of case, however, the president has discretion. 11 During the time period under study, the STF included a Jurisprudence Commission (Commissão de Jurisprudência), composed of three justices, which identified certain topics on which the Court might wish to establish a súmula. A justice or the commission composed the súmula on the basis of a number of Court decisions (generally REs, or AGs, or mandados de segurançã [MSs]) and submitted it to the full Court for review; a majority of the justices had to vote for a súmula in order to establish it. While these súmulas were not binding through 2004, Constitutional Amendment No. 45 introduced the súmula vinculante: the justices (with a vote of two-thirds) can now establish such súmulas as binding on the Court and on lower courts. 12 REs may be accompanied by requests for summary judgment, referred to as “pedidos de medidas cautelares.” 13 The general rule of thumb is that REs, AGs, MSs in the Court’s appeals jurisdiction, and habeas corpus (HC) are raised to a chamber. The turma may also raise the RE to the plenário. 14 Before 2002, the idea of admitting/dismissing a case (“conhecimento”) depended upon both its formal aspects and, in appeals, whether the constitution was correctly applied in the lower court: the Court “não conheceu” (dismissed) cases on the basis of formal defects, or because they evaluated the case and judged that the constitution had been applied correctly. In 2002, however, “conhecimento” began to refer only to the process by which the Court evaluated the formal requirements of the case (which is generally done first, though technical flaws may go unidentified until much later in the decision-making process), and the term “provimento” was adopted to refer to the evaluation of whether the constitution had been applied correctly. 15 Some clerks (e.g., AS-01) were not sure of the function of the PGR’s opinion (in particular, since it is non- binding) and suggested that it may be an artifact of tradition. Others (e.g., AS-04) pointed out that the PGR is the “guardian of the law,” and may bring up issues/laws relevant to the case that the parties have left out because it is not in their interest to highlight them.

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if there are many cases about the same topic, the relator selects a small subset to send to the PGR (this was formalized in an internal resolution in 2005); however, if there is a minor involved in the case or if the relator for some reason would like to request a recommendation from the PGR, he may do so.

In the case of Agravos de Instrumento (AG), a copy of the case (rather than the case itself – and often not all of the papers associated with the case) is sent to the Court. The first decision the relator makes is to decide to admit or dismiss the case based on its formal aspects; AGs have some formal defect and are dismissed about 10-15% of the time. If the justice admits the case, he then evaluates whether the constitution was applied correctly by the lower instance court. If it was, again, the case ends. If it was not, the relator can request that the lower court send the whole case to the STF, or can simply convert the existing AG into an RE and judge it as an RE. From this point, the case proceeds as do REs (just described).

Mandados de segurança (MSs) in the Court’s original jurisdiction16 are generally filed together with a request for an injunction (pedido de medida liminar); when this occurs, the relator usually decides to grant or not grant (deferir or no deferir) the injunction by himself first; he then begins to evaluate the form and substance of the case itself. Information is requested from the relevant branch of government, the case is sent to the Public Prosecutor’s Office (so that the PGR can offer an opinion – a parecer – on the case), and then the relator writes the draft opinion and requests a place on the schedule of the full Court, which then rules on the merits of the case.17

With regard to the three mechanisms of abstract review – the most common is the Ação Direta de Inconstitucionalidade (ADIn).18 Most ADIns are filed together with a request for summary judgment (pedido de medida cautelar – the same idea as a pedido de liminar in an MS).19 After confirming the technical aspects of the case,20 the relator must (within three days of the Court’s receipt of the case) evaluate the request for summary judgment, solicit and consider the recommendation of the PGR and Advogado Geral da União (AGU, something akin to the U.S. attorney or solicitor general) and write a draft injunction. Information is also requested from the

authorities who issued the act, law, or norm being questioned (who must respond within five days of the close of the initial three-day period). The Court can then issue the summary judgment. Generally the process then begins anew to make the final decision: the relator writes the relatório, requests information from the relevant authorities (which must be provided in 30 days), requests and considers the recommendation of the PGR and AGU (within 15 days of the close of the first 30-day period), and writes the draft opinion, and then again places the case on the pauta; the president then includes the case on the Court’s schedule and it is discussed and

16 MSs can also be filed as appeals; such appeals follow the sequence of REs just outlined; if the relator chooses to elevate the case, it is generally raised to a chamber. 17 Mandados de Injunção (MIs) follow similar procedures. 18 Ações Diretas de Inconstitucionalidade por Omissão are filed far less frequently. The other two mechanisms of abstract review – Ações Declaratórias de Constitucionalidade (ADCs), and Argüições de Descumprimento de Preceito Fundamental (ADPFs) – are also used less often, and follow similar procedures. ADCs are processed more quickly, and the Advogado Gerald a União (AGU), something akin to the U.S. attorney general or solicitor general, is not requested to write recommendations. 19 It is not possible to include a pedido de medida cautelar on ADIns por omissão. 20 If the Court has established jurisprudence that indicates that ADIns possessing certain technical flaws should be dismissed, and a justice is assigned an ADIn with that technical flaw, he can dismiss it in a decision monocrática.

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decided on the merits. It can sometimes be a very long time before the case is heard on the merits.21

Repeat Cases (casos de massa)

Many cases that the Court receives are “repeat cases” – identical cases regarding the very same issue or policy. Most of these cases relate to the economic policies and reforms of the 1990s. Repeat cases are not all considered separately. Instead, once they are identified as repeat cases, they are grouped together, and one is decided (monocratically, or by a turma or by the full Court). The first decision on such repeat cases often becomes the “model” decision for all of the rest of the identical cases (AS-01). One clerk suggested that the Court has approximately 200 models, and, as noted above, an important task of the administrative corps of a justice’s gabinete is to identify cases to which one of those model decisions can apply.

Decision-making procedures of the full Court

The vast majority of cases are decided by one justice alone (monocratically).22 A far smaller proportion is decided by one of the two chambers, which meet on Tuesdays (except in January and July, which are judicial holidays). 23 The plenário decides the fewest cases – but the most important ones.24 Every case that the plenário takes on is deliberated upon (to a greater or lesser degree) and voted upon. The high court meets en banc each week (except January and July) on Wednesdays and Thursdays from 2pm to 6:30pm (though it is not unusual for deliberations to go much later); such meetings rarely occur more or less frequently.

Six justices must be present to open a session, and eight justices present in order to decide constitutional issues.25 The PGR is often also present at the high court’s deliberations. Justices must vote on every case the full Court considers (unless there is a formal reason that they

21 Traditionally, the justices debated a great deal in the phase in which they were making the summary decision, which is part of the reason why the final decision on the merits was sometimes postponed for a long period. To address that problem, beginning in the early 2000s, justices began to activate Article 12 of Law 9868 (1999) which in essence allows for the bypassing of the summary decision process and hastens the decision on the merits. Specifically, the relator requests that the relevant authorities and the PGR and AGU provide their information and recommendation more quickly than is normally the case when the Court is deciding on the merits (within 10 days and 5 days respectively), writes his draft opinion quickly, and then liberates the case for decision on the merits. Such decisions are not handed down as quickly as are summary decisions, but the process is generally much faster than the previously existing process of deciding ADIns on the merits. 22 Historically, justices could only decide cases on their own when the ruling was a dismissal due to a serious technical flaw. Since 1990 (according to Law 8038, Article 38), they could dismiss a case that questioned jurisprudence that had been consolidated in a súmula. In 1994 (and again in 1998) – when the STF’s case load exploded in large part as a result of repeat cases regarding economic policy – the Civil Procedural Code (article 557) was reformed allowing justices to make decisions on their own when they were applying set (passificada) jurisprudence of the high court. 23 The Court president stays in the Court to take care of any important business during January and July. 24 One clerk (AS-01) estimated that the plenário can decide approximately 12-18 cases per session if they are not of huge significance (although there are sessions in which hundreds of cases are decided, and sessions that focus on only one); a very informal estimate is that the plenário decides approximately 1,000 cases annually. Note, however, that when these are repeated cases, deciding one case can imply deciding thousands. 25 Of course, since 1988, all of the STF’s cases regard constitutional issues; this rule, however, persists in the Regimento Interno, which was written in 1980 and has not been fully updated.

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cannot)26 in every session in which they sit (inafastabilidad).27 In extraordinarily rare cases “substitute justices” are placed on the Court to make rulings. The deliberations of the plenário and of each chamber have been public since the Court’s founding, and the plenário’s sessions have been broadcast nationally since the founding of TV Justiça in 2002. Some extremely delicate cases continue to be deliberated in secret.

During much of the post-transition period, only with ADIns, ADCs, and ADPFs was it mandatory to circulate the relatório among the justices for their consideration in advance of the Court session in which the case would be considered. This meant that justices had very little information about most of the cases upon which they would rule in a particular session in advance of the session; in fact, they were sometimes unaware of which cases would be decided during each session. Due to significant internal procedural reforms (including the improvement of the Court’s computer-based system) introduced by Justice Jobim while he held the high court presidency (2004-2006), by 2005, the cases to be considered in each Court session began to be planned far in advance and that information made public.28 Also, the relatório began to be distributed to all justices when a case was liberado more often, and supporting materials (including the relatório if it was not previously released, pareceres from the PGR, the original petition, etc.) regarding most cases were made available to all justices approximately a week in advance of the session in which the case would be considered.

Clerks were not in full agreement on how much interaction and collaboration occurs among justices. Some clerks emphasized the isolation of justices, while others highlighted that justices periodically interact in administrative sessions (which were secret until 2004) and indicated that many justices are in touch with each other on a daily basis. Nonetheless, most clerks agreed that justices rarely discuss (even informally) the details and content of particular cases prior to formal deliberation over them (though they may discuss, for instance, whether to raise a case to the plenário or when it might be decided), and all clerks indicated that justices never discuss how they will vote on cases.29 Further, the relator’s draft opinion is almost never distributed in advance of the Court’s sessions (and when it is released, this is seen poorly). Clerks suggested

that communication previous to the full Court sessions – which, again, are public – would suggest that decisions were being made “behind closed doors,” which could compromise the Court’s reputation of neutrality.30

26 For instance, justices may be suspeito (a subjective designation that must be voted on by the full Court) or impedido (an objective designation); examples of each are outlined in the civil procedural code. These reasons are infrequently invoked. 27 The Court president does not vote on purely procedural cases. Clerks suggested that justices rarely miss high court sessions (although the president and vice president of the Court travel frequently). 28 The Regimento Interno indicates that the list of cases to be considered in a particular session must be made public 48 hours in advance. Some sorts of cases are not included in the list of cases that are “ready for judgment” and are thus not placed on the Court’s schedule (for example, some criminal cases, medidas cautelares in ADIns, and internal appeals). Relatores generally arrange for these cases to be considered shortly in advance of the session with the president of the Court. Also, the Court is not always able to decide every case on the schedule in the session for which it is originally scheduled; the cases that were not decided are bumped to a subsequent session. 29 All clerks agreed that clerks do not discuss the details of cases or justices’ draft opinions either. 30 Clerks repeatedly emphasized this lack of communication among the justices regarding decisions. The STF prides itself on its ethics and image of impartiality. Indeed, when I asked other expert respondents about inter-justice conversations, their impression was generally that justices did not discuss cases prior to their resolution by the full

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Relations are generally fluid in the plenário. In each session, the president of the Court announces each case and the deliberations on each begin with the relator reading the relatório for the case aloud. The next stage is that of oral argumentation; the lawyer(s) for each side have 15 minutes each to address the Court,31 and additional individuals may give statements (for example, memoriais may be presented, or in abstract review cases, statements made concerning an amicus curiae brief previously presented). Then the PGR may speak for 15 minutes, and finally the relator reads his vote.32 Next, the president asks each justice to cast his or her own vote orally. Justices thus often have very little time to think about each particular case and how they will vote.33

The order in which justices vote is determined by how long they have sat on the Court: the justice who has sat on the Court for the least time votes first, and the justice who has sat on the Court for the most time votes last.34 While the voting can move very rapidly, divergence among the justices produces additional discussion. In voting, justices can simply agree with the relator’s opinion saying little more (although this happens rarely in the plenário), or may speak for much longer. While the first justice to disagree with the relator must explain his disagreement in greater detail, subsequently other justices may simply adhere to his dissent. Even once justices have cast their oral vote, they may change that vote if they are subsequently convinced by another justice’s arguments. Finally, justices can indicate that they are not ready to cast their vote, and would like to study the case in greater detail (pedir vistas). When this happens, the voting is suspended on the case. The justice who requested to study the case must re-present the case in the second-next ordinary high court session so that voting may resume. However, there is a relatively straightforward mechanism for extending that time (prorrogando), meaning that justices can hold onto a case that they requested to study for long periods of time.

Once all justices present have cast their vote, the President of the Court decides in which direction each justice’s vote went. In order to declare a law or act unconstitutional either in a summary judgment or a decision on the merits (absent a previous decision of the Court on that particular issue), there must be at least six votes in the direction of declaring the norm 35

unconstitutional (that is, an absolute majority). To declare a norm constitutional, by contrast, there is no minimum number of votes; that is, if there are only eight justices present and the votes are divided 5/3 with the plurality declaring the questioned norm constitutional, the Court

Court (EG-02). Nonetheless, some acknowledged that this lack of previous discussion and study of potential rulings likely impoverishes deliberations (AS-02-02). 31 Lawyers also have 15 minutes for oral argument when a case is being heard in one of the Court’s two chambers. The only cases in which lawyers do not have this opportunity are in questões de ordem (which raise procedural issues), in internal appeals (for example, agravos regimentais [ARs] or embargos de declaração), and in requests for summary judgment on ADIns. 32 In important, complex cases, the relatório and the relator’s vote can be extensive and may take hours to read. 33 These procedures are the same whether the Court is making a summary judgment or a decision on the merits. To repeat, during much of the post-transition period, justices were often completely unfamiliar with the cases to be decided; only on exceptional occasions (for instance, in connection with the most important cases) did they go to the full Court sessions with their own votes prepared (unless they were the relator on a case to be considered). By 2005, however, given that justices knew the Court’s schedule farther in advance, it was more common for them to formulate votes on cases other than those on which they were the relator in advance of the high court’s sessions. 34 Justices may ask the president for permission to vote out of order, or add additional comments before or after they have voted. 35 Thus no single chamber of the Court (let alone a single justice) can declare a law unconstitutional.

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can decide the case. Finally, the president tallies the votes, and announces the decision. The decision is in effect from that moment.36

For final decisions on important cases, the “extrato de ata” (a brief summary of what happened in the Court session and the decision) is written and approved in the next session, and subsequently published in the Diário Oficial (DOJ); by 2005, “atas” were generally published within ten days of case resolution. While publication of the “ata” does not have any legal effects (for instance, time to appeal does not begin to be counted), it is often the way that parties to the case find out the result.37

Meanwhile, transcription of the sessions occurs;38 the transcription of each justice’s vote becomes his formal vote. However, those transcribed votes (and the transcription of any discussion in which the justices engaged) are sent to the justices before being assembled into the formal decision on the case, and justices can revise and edit their vote and their interjections in discussions (although they rarely make big changes and never change the direction of the vote).39 Once the full decision on cases (the acordão – which includes all of the votes, the debate that went on in the deliberations, etc.) has been prepared, a more detailed summary of the decision (not the entire text of the decision – generally the ementa) is published in the DOJ; publication may take a few weeks (or sometimes years), and sets legal effects (such as the beginning of the time period to appeal) in motion. The complete “acordão” is available on the Court web site.

36 As noted above, if the decision was a summary judgment, the relator must then follow the procedure to make a decision on the merits, and if the plenário will decide the case on the merits, he must again request a spot on the Court’s schedule. 37 In MSs and habeas corpus (HCs), the parties are notified immediately by letter from the Court. 38 In addition, each oral vote is recorded word-for-word by the Court stenographer. 39 There was not full consensus on this point; some clerks suggested that justices only made editorial changes to their votes; others suggested that justices could strike things, but not add things.

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