DISCRIMINATORY PREFERENCE AND DISCRETION: AN ANALYSIS OF APPOINTMENTS TO THE SUPREME FEDERAL COURT

Abstract

This article aims to analyze the legal limits of the Presidency of the Republic’s discretionary power regarding appointments to the Supreme Federal Court (STF), in light of the Federal Constitution and international human rights treaties ratified by Brazil, as well as to examine the possibility of invalidating an STF appointment that is incompatible with the “block of constitutionality.” It also questions whether the discretionary power granted by Article 101 of the Federal Constitution is absolute and whether the underrepresentation of white women and the exclusion of Black women from the STF’s composition can be interpreted as institutional discrimination. The chosen methodology is qualitative, involving an analysis of administrative and constitutional law with a focus on the recognition and realization of women’s human rights. Regarding procedure, the study employs bibliographic and documentary research, analyzing legal doctrine, statutes, and actual data on the Court’s composition since its inception. The findings—based on the appointment of 172 individuals to the position, of whom only three were women (all white)—indicate a repeated violation of norms contained within the block of constitutionality. The study concludes that there is a discriminatory preference, disguised as a prerogative, which nullifies and impedes women’s exercise of fundamental rights and freedoms on equal terms. A pattern of exclusion practiced by Heads of State was revealed, constituting a flagrant violation of the human rights of women, particularly Black women