Whether Brosius-Gersdorf becomes a judge or not: The cold-blooded calculation of the SPD is paying off

Politics thrives on tactical calculation. Science on rationality. And esotericism on fateful signs. Not everyone seems to understand the functional logic of the other system. A fatal mistake. For if Frauke Brosius-Gersdorf had her cards read, she would likely have rejected the SPD's offer to be nominated as a candidate for the Federal Constitutional Court.

Her candidacy was doomed from the start. Her doctoral supervisor, Horst Dreier, had already failed in the 2008 election for constitutional judge. And it should have been clear since the failed chancellor election: This coalition isn't on the brink of collapse; it's been balancing on its edge for a long time.

While the SPD presents itself as a moral authority, the lawyer goes down the drain

Stars, cards, bad omens? Unscientific mumbo jumbo. But the field Brosius-Gersdorf has entered thrives on irrationality and unpredictability. While culprits are being sought and a supposedly massive conspiracy surrounding the election of judges is being uncovered, the responsibility of the SPD, which demonstratively supports its candidate, is being lost sight of. What if the staged loyalty actually pursues a different goal?

What if solidarity was merely a facade and, in reality, the starting signal for a controlled failure? While the SPD presents itself as a moral authority, a lawyer is going under. In full public view.

Looking back: At the beginning of July, everything seemed to be going smoothly. An agreement had been reached on three new constitutional judges, including two lawyers from the SPD's right of nomination: Ann-Katrin Kaufhold and Frauke Brosius-Gersdorf. The latter, a legal scholar and professor at the University of Potsdam, is considered a distinguished constitutional lawyer with profound expertise. The electoral committee approved the appointment with votes from the CDU/CSU.

The election date was set for July 11th – and with it the beginning of the parliamentary summer recess. But shortly after the vote in the electoral committee, the mood changed. Some media outlets are talking about an "orchestrated action" initiated and directed by anti-abortion activists, right-wing populist media, and the AfD.

The news platforms Apollo News and Nius are said to have deliberately stirred up sentiment against Brosius-Gersdorf after the nominations were announced. This concerns several articles addressing Brosius-Gersdorf's positions on equality, mandatory vaccination, the AfD, and the headscarf ban.

The Potsdam professor, a guest on Markus Lanz's show in July 2024, advocated for a ban on the AfD, provided there is sufficient evidence. Such a process could send "a very strong signal of our resilient democracy." The problem is that even a ban on the party will not "eliminate" the Alternative for Germany's supporters. A formulation she later described as "unfortunate."

The protection of unborn life

However, it maintains its fundamental position: If, after careful examination, sufficient evidence of anti-constitutional goals exists, the democratic constitutional state must be able to act. A position that suits the SPD. At their party conference three weeks ago, the Social Democrats unanimously agreed to prepare a ban on the AfD.

But it wasn't just this high-profile position that shook the supposedly stable judicial election framework. Brosius-Gersdorf's stance on protecting unborn life took it even further.

In particular, a sentence that the lawyer said as an expert in a legal committee on abortion reform caused discussion: "In my opinion, there are good reasons why the guarantee of human dignity only applies from birth." What was meant, from her perspective, as a constitutional classification within the framework of a differentiated hearing, was declared a "left-wing extremist" worldview in the media and political debate.

Representatives of the CDU/CSU and several Catholic bishops accused Brosius-Gersdorf of questioning the right to life of unborn children. Nius editor-in-chief Julian Reichelt spread the claim that the candidate for a judgeship at the Federal Constitutional Court considered "abortion up to the 9th month" to be constitutional – an accusation Brosius-Gersdorf rejects as false and "infamous." What is certain is that the question of when the Basic Law's guarantee of human dignity takes effect is controversial among legal experts.

Frauke Brosius-Gersdorf argues that, from the perspective of current law, there are good reasons to believe that the guarantee of human dignity only applies at birth, without thereby calling into question the fundamental need for protection of unborn life. An argument that is certainly well received in academic circles, but which caused dismay among large sections of the CDU/CSU parliamentary group.

At the very latest, on the eve of the scheduled election, the SPD could have extinguished the already blazing fire surrounding Frauke Brosius-Gersdorf by announcing that the election would be postponed. Instead, the Social Democrats demonstratively backed their candidate, which amounted to using an accelerant.

Because with every day that she clings to the nomination, what was intended as a sign of steadfastness becomes more and more of a cynical exercise in self-delusion. The SPD allowed itself to be celebrated as a moral bastion, while its candidate justified her positions on TV shows.

Whoever claims the right to interpret believes he is right and is fatally mistaken

Brosius-Gersdorf became a pawn in political calculations. From the outside, the SPD's behavior appears to be an act of adherence to principles. But the question arises whether the Social Democrats hadn't deliberately banked on failure in order to then turn the tables and blame the CDU/CSU for the failed judicial election. Those who think this way aren't accusing the SPD of weakness, but rather of a politically calculated maneuver with maximum potential for escalation.

Not even when the number of critical voices in the CDU/CSU parliamentary group grew and initial reports suggested that 30 to 60 MPs could block the election did the SPD undergo a strategic rethink. No sign of concession, no alternative candidate, no discernible attempt at de-escalation. Only slogans of perseverance and the mantra-like repetition that they would not be driven by "right-wing campaigns." But that is precisely what has long since happened.

The pose of steadfastness has long since lost touch with reality. Those who claim sovereignty of interpretation believe they are in the right and are fatally mistaken.

The party could have announced the withdrawal of its candidate at any time, citing the flawed process, personal hostility, or a degraded debate culture. The list of reasons is long. A withdrawal after the vote of the Judicial Selection Committee, but before the final vote in the Bundestag, would have been legally possible without any problems. The committee merely makes a recommendation; the actual election only takes place with the required two-thirds majority in the plenary session.

Until this step is completed, the nominating party can withdraw the name, or a candidate can declare that she is no longer available. While formally unproblematic, such a step would nevertheless be politically sensitive: While it would have eased the pressure on the CDU/CSU, it would simultaneously reveal its own weakness in the process. Nevertheless, it could have preserved the candidate's dignity and possibly spared the coalition further damage.

But instead, Brosius-Gersdorf was left to justify herself, explain herself, and defend herself. Giving in? Not an option for the SPD. The wave the Social Democrats have been riding since the federal election is apparently being ridden to the bitter end.

At what price? The coalition is severely damaged, the proceedings have derailed, and the independence of the highest court has suddenly become a bargaining chip in political power games. Instead of a wise course correction, the SPD demonstrated stubborn adherence to principles until the very end. Instead of assessing the situation from a practical political perspective and finding a solution in the interests of and for the protection of "a resilient democracy," it is clinging to a decision that has long since lost majority support. Thus, the SPD has maneuvered itself into a position in which it can neither credibly adjust nor aggressively defend its position.