Choosing Judges in Brazil: Reassessing Legal Transplants from the United States

Abstract

This Paper compares the Brazilian with the United States general procedures of judicial selection at the state and federal levels. The most significant difference between the two approaches is that in Brazil the selection at the lower level is entirely administered by the judiciary, while in the United States, judges are either approved by the executive or elected by popular vote. At the Supreme Court level, however, the Brazilian Constitution uses the same mechanism that is used in the United States, namely presidential nomination and Senate confirmation. This Article contends that the constitutional transplant of the U.S. model of judicial selection, at the Supreme Court level, has produced a marked balance of power between different branches of the Brazilian government and has led to significantly fewer conflicts between the president and the Senate than in the United States. We will try to explain why apparently identical legal institutions have evolved in such different ways, in particular focusing on the specific role of the Senate in confirming presidential nominees.

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