Non-election of constitutional judges | Election of constitutional judges: Fatal politicization

A hate-filled, defamatory campaign by right -wing conservative to right-wing extremist circles, supported by parts of the CDU/CSU parties, has resulted in the (temporary) failure of the election of Federal Constitutional Court judges in the Bundestag. Authoritarianism, with the intention of politically controlling the highest court, has been openly demonstrated. This politicization endangers the independence of the Federal Constitutional Court (BVerfG) and trust in this institution.

Unlike parliamentary bodies, there is no legally binding right of nomination for the federal Supreme Court based on political proportionality. For good reasons. The separation of politics and the judiciary is central to democracy.

Half of the judges at the Federal Constitutional Court are elected by the Bundestag and half by the Bundesrat. The relevant law provides for the right of nomination by the Federal Electoral Committee for the Bundestag election, which in turn is appointed by members of parliament according to the principle of proportional representation. If no election takes place within a certain period after the end of a judge's term of office, the plenary session of the Federal Constitutional Court makes a nomination.

Even though officially only the Federal Electoral Committee has the right to propose candidates, an informal right to propose candidates has been established for parties. Nevertheless, despite the communication to the contrary, the planned election last Friday was not about proposals from the CDU/CSU and SPD, but rather about a proposal from the Federal Electoral Committee. The committee received two informal proposals from the SPD and a proposal from the plenary session of the Federal Constitutional Court, as no vote was taken regarding the CDU/CSU's unofficial right to propose candidates. This makes it all the more incomprehensible that, with regard to the proposal from the plenary session of the Karlsruhe Court, The Left Party made an irrelevant connection between co-election and discussions with the Left Party (regarding its future involvement not only in the election of judges).

In my opinion, the politicization of judicial elections, driven by authoritarian forces, can only be stopped by ending the unofficial right of parties to nominate candidates. Otherwise, every person running for election as a constitutional judge must expect to be made the subject of public campaigns, including personal discrediting, as is currently the case with Frauke Brosius-Gersdorf. Who would put themselves through that?

Therefore, the unofficial right to propose candidates to the committee should be decoupled from the parties, and a cooling-off period should be introduced for those transferring from politics to the Federal Constitutional Court. This could contribute to protecting the court's independence. Even though the transition from active politicians (Peter Müller, Stephan Harbarth) to Federal Constitutional Court judge has been successful in practice, such a transition should be ruled out in the future. It would therefore be sensible to stipulate a cooling-off period of two years or one electoral term for politicians before election to the Federal Constitutional Court in the relevant law.

At the same time, the law could stipulate that the right to propose candidates to the Federal Electoral Committee rests exclusively with non-partisan legal professional organizations and associations. The emergency mechanism for proposals by the plenary session of the Federal Constitutional Court should be retained. Then, for example, the German Bar Association, the Republican Bar Association, the Association of Democratic Lawyers, the Association of Women Lawyers, the German Judges' Association, or the New Judges' Association would propose candidates to the committee. The Federal Electoral Committee would develop a proposal from these individuals for the plenary session of the Bundestag.

It would also be conceivable to grant the federal courts (Federal Social Court, Federal Administrative Court, Federal Court of Justice, Federal Fiscal Court) the right to propose candidates to the committee. Of course, there would still be nominations from one party or another—but the focus would be on professional qualifications.

The final decision, of course, remains with the plenary session of the Bundestag. The democratic chain of legitimacy would thus be maintained, but the Federal Constitutional Court would no longer be a pawn in political (power) interests.

Halina Wawzyniak holds a doctorate in law and was a member of the German Bundestag from 2009 to 2017, where she was responsible for legal and internet policy in the Left Party's parliamentary group. She regularly comments on current political debates on her blog wawzyniak.de.