“Germany should send a clear signal for the independence of the courts,” Renate Künast, a senior lawmaker in Germany’s Green Party, recently told German media. She was referring to the heavily politicized appointment of Brett Kavanaugh to the Supreme Court of the United States, which appalled many Germans. She also had in mind the judiciary crisis in neighboring Poland, where the right-wing government is accused of stacking the top courts with sympathetic judges. In this context, Künast said rather smugly, Germany must be a “beacon” of judiciary rectitude.
But her contention that Germany is a shining example of a judiciary branch free from political interference is a stretch. In fact, politicians exert considerable influence on how the country’s top judges are appointed. Indeed, the Polish government never misses an opportunity to stress that Warsaw’s controversial judiciary reform is partly modeled on how Berlin selects its most senior judges.
“Poland wants to once again place its judiciary under democratic controls,” said Polish Prime Minister Mateusz Morawiecki earlier this year. “In Germany, for example, the justices of the highest courts are appointed by a committee for the election of judges,” he told the German press.
A papal election in Karlsruhe
He has a point. Germany’s nomination process to the Federal Constitutional Court is not only highly politicized but also opaque. A set of written and unwritten rules governs which party gets to pick a nominee; the selection process involves a great deal of political horse-trading, not to mention an ad hoc parliamentary committee whose work is shrouded in secrecy. “Compared to how Germany’s constitutional judges are elected, the election of the pope is a paragon of transparency and democracy,” Helmut Kerscher, a German court reporter, once lamented.
Technically, Germany, unlike the US, doesn’t have one supreme court but six federal courts, each with a specific jurisdiction. The highest court handling civil and criminal cases is the Federal Court of Justice, or BGH. The Federal Constitutional Court’s role is to decide only whether laws comply with the constitution or not. This is a limited scope, but an extremely important one. Like the BGH, the top constitutional court is located in Karlsruhe, well away from the center of political power.
When the court breaks the law
Sixteen justices sit on Germany’s Federal Constitutional Court. They’re divided into two chambers — called senates — of eight justices each. An adequate candidate must be a federal judge of at least 40 years of age, among other criteria. While US Supreme Court justices have lifetime tenures, the 16 judges on Germany’s top court are appointed for a 12-year term. They cannot be reelected, “to ensure their independence,” the court’s website says. And they must retire upon reaching the age of 68.
Unless they don’t.
Tellingly, the current vice-president of the Federal Constitutional Court, Justice Ferdinand Kirchhof, turned 68 this summer and should have gone into retirement on June 30. But he’s still in office, causing Germany’s top court to flout the law. Let that sink in. The reason is politics: The Christian Democratic Union — Chancellor Angela Merkel’s center-right party — can’t come up with a suitable successor. A myriad of political considerations, not to mention rivalries between various factions within the party, are hampering the search. Meanwhile, Justice Kirchhof has no idea when he’ll be able to retire.
Half the justices are chosen by the Bundestag — the lower chamber of parliament. After a special-purpose committee of 12 lawmakers from the various parliamentary groups puts forward a nominee, a secret-ballot vote takes place without prior debate. To be elected, a judge must obtain at least two-thirds of votes cast. This supermajority rule makes it unlikely that a single party prevails despite widespread opposition. In effect, it prevents the recent American situation in which Judge Kavanaugh was elected 50-48 by Senate Republicans.
The other half of Germany’s constitutional court justices are chosen by the Bundesrat, the upper chamber consisting of the 16 federal states, also by a two-thirds majority. The only difference here is that there is no electoral committee picking a nominee first: The party in charge selects a judge — voilà.
A delicate balance
In practice, the supermajority requirement has enabled the two parties that have dominated political life for most of Germany’s postwar history — the CDU and the center-left Social Democrats — to evenly share the rights to pick a judge. This ensured that the Federal Constitutional Court remained politically balanced, unlike its pre-war predecessor, the arch-conservative Court of Justice of the Reich. Packed with elderly, reactionary judges nostalgic for the Kaiser, that court neglected the political foundations of the Weimar Republic before giving the Nazi regime a veneer of judicial respectability.
The problem is that the mainstream parties need to reach a consensus on judiciary appointments to ensure a nominee gets a supermajority. This means that a lot of haggling takes place, most of it away from the public eye.
The CDU/CSU bloc and the SPD have each selected seven of the 16 judges currently serving on the Federal Constitutional Court. The remaining two justices were picked by two smaller parties, the pro-business Free Democrats and the Green Party, because they have been in coalitions with the big-tent parties, either at the federal level or in state legislatures. They were only allowed to pick a nominee because the two bigger parties “let” them do so. But then, it was understood that the FDP would choose a conservative-leaning judge while the Greens would select a left-leaning one. (Their pick, Susanne Baer, is the first openly homosexual woman to serve in the Federal Constitutional Court.)
For all its obvious faults, this system worked smoothly for decades. The delicately-maintained balance of conservative and liberal-minded justices has given the Federal Constitutional Court a reputation for impartiality and earned it more respect than most other German institutions among the wider public.
The judges are getting nervous
But as the combined dominance of the CDU and the SPD dwindles, the system is showing strain. Thanks to the Green Party's increasing strength in the Bundesrat in recent years, it recently obtained the right to hand-pick every fifth justice elected by the upper chamber. But the two bigger parties later reneged on the agreement. Instead, it was the CDU that selected the latest supreme court nominee, arguing that to do otherwise would have tipped the court majority in favor of left-leaning justices. The Greens weren’t pleased but eventually caved in. They’ll get to pick another judge later.
All this is leading to more criticism of the process. None other than the current president of the Federal Constitutional Court, Andreas Vosskuhle, said that the way a closed-door panel picks a nominee with little accountability “can quite rightly be described as unconstitutional.”
Among Germany’s top court judges, the unease is palpable. When Justice Michael Eichberger stepped down earlier this year at the end of his 12-year term, he warned his successor, Henning Radtke, of creeping “politicization” of the court. He singled out the increasing amount of horse-trading as one of the problems. And he called on politicians to find a new vice-president at last. “Overcome the impasse; change your priorities,” he urged, stressing that public confidence in the institution was at stake. In times of rising populism, when confidence in the political class and the media is receding, the last thing Germany needs is for the public to lose trust in its courts.
Jean-Michel Hauteville is an editor with Handelsblatt Global in Berlin. To reach the author: [email protected]