Just a "glitch" in the election of constitutional judges?

The governing coalition of the conservativeCDU/CSU and the social democratic SPD , which began a good two months ago, is entering its parliamentary summer recess amidst controversy. Following the initial failure to elect three Federal Constitutional Court judges in the German Bundestag, SPD parliamentary group leader Matthias Miersch sees no reason to look for other candidates. "It's clear to me: We're sticking with our candidates," Miersch declared. He accused the coalition partner of "deliberately dismantling our highest German court and our democratic institutions." Leading representatives of the opposition made similar comments.

The election of judges was removed from the Bundestag's agenda at short notice on Friday because internal opposition within the CDU/CSU to the Social Democrats' nominee for law professor Frauke Brosius-Gersdorf became too strong. The reason for this is likely primarily the 54-year-old's liberal stance on abortion, but her call for mandatory vaccination during the coronavirus pandemic is also viewed critically.

In the past, she had also advocated for a ban on the AfD , like the SPD, a move that particularly displeased members of the party, which is partly classified as right-wing extremist. AfD parliamentary manager Bernd Baumann, for example, emphasized that Brosius-Gersdorf was "impossible" as a candidate for the Federal Constitutional Court .

The debate was further intensified by a tip from the Austrian "plagiarism hunter" Stefan Weber. He had discovered similarities between Brosius-Gersdorf's dissertation and her husband's habilitation thesis.

"Blatant leadership failure"

Former Federal Constitutional Court judge and former CDU politician Peter Müller sharply criticized CDU/CSU parliamentary group leader Jens Spahn. The incident demonstrates "a blatant failure of leadership on the part of the CDU/CSU," Müller told the Süddeutsche Zeitung. "Something like this must not happen." Müller expressed concern "that the political center in Germany has only limited capacity to act."

The fact that there are reservations about personnel proposals for the Constitutional Court is nothing new, said Müller. "But: Until now, this has been clarified in advance" – and here there have been shortcomings on the part of the Union parliamentary group led by Spahn. One cannot promise the SPD that it will support the election of a judicial candidate "only to later discover that the necessary majorities for this are not present within one's own parliamentary group," criticized the 69-year-old.

Ferdinand Kirchhof, Vice President of the Federal Constitutional Court until 2018, however, spoke of a "mishap in the selection of personnel." He also does not see the court's independence compromised. "I see no danger there." One is elected to office once, and once a judge holds that position, their independence must be demonstrated. This has always been successful so far. The court's functionality is not jeopardized by the failed election. The outgoing judge must continue in office "until the successor is elected." This ensures continuity, Kirchhof explained the situation on the news portal "ZDFheute.de."

"Federal Constitutional Court not damaged"

Federal Interior Minister Alexander Dobrindt also contradicted assessments that the failed judicial election had damaged the Federal Constitutional Court. "Anything that doesn't lead to a very specific result automatically damages the Federal Constitutional Court: I cannot agree with this view," the CSU politician said on Deutschlandfunk radio. "I also don't see any damage to the Federal Constitutional Court at all," Dobrindt clarified.

"When you run for the highest office and have to be elected, you are also subject to public scrutiny. There are also discussions and debates about it. These can also influence the whole thing. And then things don't go as planned. Or you have to have the opportunity and the strength to change something," the Federal Minister of the Interior continued. This does not relativize "the fact that this was not the normal process and that one would have preferred a different process or a different outcome in the process."

"Completely distorted"

Chief of Staff Thorsten Frei (CDU) expressed optimism that the CDU/CSU-SPD coalition would still reach an agreement. "The election of constitutional judges is within the sphere of parliament. I am confident that the coalition factions will find a viable solution over the summer," Frei told the "Neue Osnabrücker Zeitung."

The SPD suggested that lawyer Brosius-Gersdorf should now personally appear before the CDU/CSU parliamentary group and speak with the CDU and CSU representatives about her candidacy. "We hope that the concerns about Brosius-Gersdorf can be dispelled at this meeting." A Social Democrat from the parliamentary group leadership emphasized that many of her positions had been "completely distorted."

wa/jj (dpa, afp, rtr)