Frauke Brosius-Gersdorf trapped: These are the true consequences of the failed judicial election

There are stories, both left and right, of attempted coups during the judicial elections. Nonsense! A look at Poland shows the real danger threatening Germany. An analysis.

Members of the Second Senate of the Federal Constitutional Court, to which Frauke Brosius-Gersdorf was to be elected. dpa

We got away with it again. The coup didn't happen. The conspiracy failed. It now seems clear that a coup was planned; right-wing radicals, the left, and the political center largely agree on this. The only dispute now remains over who wanted to stage a coup: the AfD against the CDU, or the Left (from the SPD and the Greens to the Left Party) against the AfD.

No, this isn't about the trial against the Reuss Group , an alliance of deranged Reich Citizens who wanted to overthrow the federal government and are now on trial. No, it's about a different coup, or, strictly speaking, two different coup attempts.

Dispute over Frauke Brosius-Gersdorf: The coup that never happened

The first coup attempt I'm referring to isn't usually called that by those who believe they uncovered it. In times of deteriorating morals and mutual suspicion, I give them credit for that: They call what they uncovered merely "a campaign from the far right" ( ARD ), with which "right-wing networks" sought to "defame" a candidate for the Federal Constitutional Court ( SWR ).

By putting pressure on the public and the CDU parliamentary group, the latter was to be persuaded to vote against the SPD's proposed candidate, Frauke Brosius-Gersdorf. This worked, at least until now, because the election was postponed. In September, we will find out whether the CDU parliamentary group's relationship with the "right-wing networks" is more important to the SPD than the coalition with the SPD (and thus the Chancellery). What Chancellor Merz has said so far suggests that he intends to remain Chancellor and attributes the postponement to a misunderstanding: his candidacy was not sufficiently explained to the parliamentary group. Meanwhile, the "right-wing networks" are targeting the second SPD candidate , Ann-Katrin Kaufhold , thus providing Merz and Klingbeil with additional arguments to stand firm on the issue.

The whole thing has little to do with a coup or a smear campaign; it's a mixture of a lobbying effort and an attempt to mislead the public. Pollsters refer to this effect as "pluralistic ignorance." It describes a situation in which the majority (of a group, of a society) believes a certain opinion to be the majority opinion and therefore subscribes to it. Those who have written to their representatives in recent weeks, launched online petitions, and posted (sometimes truly defamatory) posts on X, TikTok, and Facebook are trying to create the impression in the media and the public that the majority of society opposes the SPD's candidacies for the Constitutional Court, in the hope that this will create such a majority.

There's nothing wrong with that. We in Germany have known since the 1970s that a vocal group can create new majorities by creating the (false) impression that it is the majority, when Willy Brandt, supported by major newspaper publishers and intellectuals, pushed through his new Ostpolitik and the recognition of the Oder-Neisse border. Initially, no one wanted it, until the impression that it was capable of gaining a majority led to it becoming a majority.

Back then, something like this required public television (private broadcasters didn't exist yet), major publishers (Spiegel, Die Zeit), and well-known intellectuals. Today, it's possible with internet portals, online surveys and petitions, social media, and (instead of intellectuals) with celebrities and influencers. But that hasn't made things any easier. This is shown by the first survey , which found that a majority of respondents are against Ms. Brosius-Gersdorf backing down. The attempt to create a majority against her with a lot of noise has failed miserably and visibly for all to see.

Much ado about nothing, one could say—neither a campaign nor an attempted coup. Perhaps the goal of the action wasn't to oust the SPD candidates, but something else entirely: to drive a wedge between the SPD and the CDU, entirely in keeping with the AfD strategy paper leaked to the media, which Markus Preiß mentioned in his now-famous interview with Alice Weidel.

Maybe, but it didn't work either. Noise doesn't change politics. There was never any chance of that happening, or, from the opponents' perspective, any danger of that happening. This becomes clear when you look at the other side of the coin—the coup that the action against Brosius-Gersdorf was intended to prevent.

The SPD and the AfD ban: A coup that could never have happened

The other coup theory goes like this: Lawyers Brosius-Gersdorf and Ann-Katrin Kaufhold are SPD candidates for a ban on the AfD and are supposed to replace judges in the Second Senate who have reached the age limit. They establish a majority there, the AfD is banned, its representatives lose their seats, and a new, now left-wing majority emerges in the Bundestag, consisting of the SPD, the Greens, and The Left Party. With a constructive minority vote, they overthrow Friedrich Merz and his government and seize power in Berlin themselves.

This is how a well-known lawyer posted it on X , and this is how the self-proclaimed plagiarism hunter Stefan Weber sold it on his account after it turned out that his plagiarism accusations against Brosius-Gersdorf had been too thin.

When I read that, goosebumps ran down my spine, too. Until I started to think about it. Then they disappeared again. This scenario has so many unknowns that no self-respecting putschist would get involved in it. First: How does the SPD force its candidates to adhere to the scenario once they're in the Second Senate and thus irremovable, enjoy immunity, and are "subject only to their conscience"? How do they force the other judges to vote for a ban on the AfD? A majority decision would require at least three more in the eight-member Senate. Second: In the proceedings against the Socialist Reich Party, the Federal Constitutional Court actually ordered the forfeiture of all SRP mandates. How do we know that will happen this time? If things turn out differently and the AfD representatives remain as independent representatives in the Bundestag and the state parliaments, the entire alleged coup will have been for nothing.

Third, Merz's coalition would still have a majority in the Bundestag – not just with the SPD, but also with the Greens. If the Federal Constitutional Court revokes the AfD's mandates, this would strengthen the CDU more than the SPD. Merz can remain chancellor and choose between two coalition partners; the SPD can only become chancellor's party if it reaches an agreement with the Greens and the Left Party.

Anyone who dares to stage a coup under such conditions would be better off sitting right next to Prince Reuss and his co-conspirators. At least they've achieved nothing. The mythical Federal Constitutional Court putschists who are making headlines these days are threatened with achieving the opposite of what they supposedly want: that Merz remains chancellor and the CDU remains in government, either with the SPD or the Greens as partners. So, was the coup based on the SPD filling the court with judges so that it could lose power and Merz could bring the Greens on board?

It's like all conspiracy theories: they're frightening at first, but upon closer inspection, you quickly realize they're so absurd that they can't be refuted, and if they were true, they would lead to absurd results.

The true consequences of the judicial election affair

But that doesn't mean the whole affair is just hot air. Quite the opposite. It may be that Germany has just—and largely without realizing it—fallen into a trap in which Poland has been stuck since 2016, with no hope of escape whatsoever.

This trap doesn't snap shut because someone attacks Supreme Court justices or candidates for the Supreme Court, but because others defend them and they defend themselves. Judges are unprepared for political attacks; not only are they not politicians, they don't want to be, nor should they be.

Only, sometimes they have no choice. Therefore, you can generally rely on them to initially not respond to attacks at all, and then to respond very clumsily, usually by repelling them. But no one can, as a Polish proverb says, "prove they're not a camel."

Ms. Brosius-Gersdorf cannot prove that she is not a "left-wing, green, filthy ideologue" who wants to abort children in the ninth month. If she tries to refute this, she has to take a position, justify herself, and thus "prove that she is not a camel," and then she finds herself where she absolutely does not want to go and is not allowed to go: in the middle of the political debate. It's a bit like attacking a declared pacifist with an axe. He could die in the process. Or he could stop being a pacifist. With her appearance on "Markus Lanz," Brosius-Gersdorf has fallen right into the trap her opponents have set for her. It is the first step toward what politicians like to call "the politicization of the Constitutional Court."

Constitutional courts are the most political thing there is

CDU MP (and Brosius-Gersdorf opponent) Saskia Ludwig demanded on X that "constitutional judges should represent the people in their work" and not themselves. Sounds good, but it's nonsense. If that were the case, they could be elected directly, for example, together with the Bundestag. Then every government would not only have a majority in parliament, but also in the Constitutional Court, which would then, however, be superfluous as a control body for government and parliament. Ludwig is not alone in her conviction. Many people believe that constitutional courts exist to interpret the constitution in the interests of "the people." If that were the case, they could be replaced inexpensively with an algorithm, an AI, or the senate of a law school.

In reality, constitutional courts have much more important functions, which many judges themselves aren't fully aware of. They are the final arbiters when disputes arise between other state bodies, they control the legislative and executive branches, they ensure that majorities have to compromise with minorities, and they protect citizens from the arbitrary powers of the state (perhaps that's what Saskia Ludwig meant).

That's why the judges there must be independent. That doesn't mean independent of everyone and everything, but rather independent of those who are supposed to control the judges: the government and parliament. To enable them to do this, they have immunity and cannot be removed from office before the end of their term. That doesn't mean they aren't allowed to have opinions and must be completely politically neutral.

Studies show that judges often, without realizing it, make decisions based on political convictions, origin, age, upbringing, nationality, and religion. At the International Court of Justice, there is a judge who always votes for Israel because she is a follower of an evangelical sect. This is counterbalanced by the fact that such courts always decide collectively. The woman is outvoted by her non-evangelical colleagues.

From this perspective, it makes no difference whether a radical left-wing judge or a radical right-wing judge actually takes a seat in Karlsruhe, as long as there is no clear, predictable party-political majority in any Senate.

The situation in Poland has been so depressing since 2016

We've had such a situation in Poland since 2016. PiS governments appointed their party soldiers as judges, who dutifully voted as the government wanted, and thus the government controlled the court, rather than the other way around. This process began with the government launching a frontal political attack on the judges, and the judges, just like Frauke Brosius-Gersdorf, resisted and thus ceased to be neutral.

From then on, they were considered "anti-government judges." It was easy to convey this to the public: arrogant, corrupt, and out-of-touch judges, who weren't democratically elected, were opposing a democratically elected government. Wasn't that outrageous? This way, the resistance of the judges could be broken without arousing the people's anger, and, as a nice side effect, the Constitutional Tribunal could be filled with judges who weren't out-of-touch, arrogant, and corrupt, but who instead pandered to the government. The others defended themselves against the accusations (the one about corruption was largely fabricated), thereby proving themselves unsuitable as judges—they were no longer neutral.

What the PiS governments did back then to eliminate the Constitutional Court as a supervisory body has been taken up in recent weeks by right-wing internet portals, conservative CDU members of parliament, and uncritical journalists in Germany. Hardly anyone intended to eliminate the Constitutional Court as a supervisory body of the government; most were probably only interested in either preventing the appointment of a judge they found inconvenient or driving a wedge between the CDU and SPD.

Some, like Bamberg Archbishop Herwig Gössl, simply fell victim to defamation. This also explains why the anti-Brosius-Gersdorf mobilization was so quickly declared a "defamation campaign" and a right-wing conspiracy: The bishop and many journalists and CDU politicians didn't do any research or were too careless before issuing their statements; no, they fell victim to a campaign. Just like Brosius-Gersdorf, one could say.

But with her public defense, the damage has finally been done. From now on, every candidate for Karlsruhe will be publicly scrutinized just like her. We will learn who a candidate is married to, who her children are (and what their views are), self-appointed plagiarism hunters will be on her heels, and legal autodidacts will explain to us what highly outrageous, immoral, and contrary to natural law and common sense conclusions can be drawn from her previous judgments and legal analyses.

And of course, every candidate will resist this, perhaps even sue, until it becomes clear where they stand politically, ideologically, and party-politically, thus demonstrating their own unsuitability for office. At the end of this path, we will have a Constitutional Court with a clear party-political profile: The First Senate is left-wing, the Second Senate is conservative, or vice versa.

Anyone who cares to watch what happens next can observe in Poland: There, the government ignores rulings from the court, which is currently staffed exclusively by PiS party members. It has been ineffective as a supervisory body and protector of citizens for ten years: first because it ate out of the government's hand instead of reprimanding it, then because the government ignored it because it was "politicized." That's another term the political establishment used to fool its own voters: Constitutional courts everywhere are political; they have to be if they are to function. There's just one thing they must never become, because then they make themselves superfluous: party-political.

Mobilization against Brosius-Gersdorf: Was it worth it?

It's what game theory calls a lose-lose game: one in which everyone loses in the end. Brosius-Gersdorf wasn't prevented; the wedge wasn't driven between the SPD and the CDU, but right into the heart of the CDU; constitutional judges are now being given party-political flags to wear. Was it worth it?

The paradox: Yes, that was it. If you look at what was being mobilized against the judge, this becomes immediately clear. It was about her possible stance in proceedings to ban the AfD.

I don't know how seriously one should take the about-face by prominent SPD politicians on this issue, but since I've been tracking data on the online mobilization against Brosius-Gersdorf and Ann-Katrin Kaufhold, I know the AfD is apparently taking it deadly seriously. And that's precisely why what we predicted here months ago has come to pass. You can ban the AfD, but that drags the Federal Constitutional Court into the middle of the party-political debate. And there it is now, barely one step away from the pit into which its counterpart in Poland fell nine years ago.