Government Appointment Discretion and Judicial Independence: Preference and Opportunistic Effects on Brazilian Courts

Abstract

The prolific literature on de facto judicial independence misses a key variable to explain political bias: the government’s discretion over the appointment of Supreme Court Justices. In this paper, we explore a distinct feature of the Brazilian judiciary system to assess political bias due to government appointment discretion. As there are two courts, the STF (Supreme Federal Court) and the STJ (Superior Court of Justice), that deal with similar matters and have different restrictions on the appointment of their members, it is possible to compare the degree of political influence to which they are subject. We test (1) whether there are differences in the degree of political influence depending on the president’s discretion over the nomination of a justice, and (2) whether the justices actively benefit the party of the president who has appointed them. We find evidence of the first effect, but little of the second.