Whenever there’s talk of a crisis of democracy in Germany, leading politicians proudly point to the well-established independence of the “judges from Karlsruhe” — that is, the judges who sit on the Federal Constitutional Court, which is based in the southern German city.
The Federal Constitutional Court is one of the highest courts in Germany and is also seen as the “fifth organ” of the country’s political system, alongside the presidency, the parliament or Bundestag, the federal government and the Bundesrat, the federal council of German states.
Unlike the Federal Criminal Court, which is the highest court for civil and criminal justice, the Federal Constitutional Court’s job is to ensure that Germany’s Basic Law — its constitution — is upheld. It is seen as the guardian of Germans’ basic rights.
The Federal Constitutional Court is also the only court that can decide about banning a political party. The court’s decisions are widely recognized and often offer a course correction for ruling political parties.
All of this is why last week’s failure to elect three new judges to the Federal Constitutional Court has been so controversial.
There are 16 judges on the bench, all of whom can serve 12 years. Half of them are chosen by the Bundesrat, the council of leaders of Germany’s 16 states and the other half by parliament, the Bundestag. In both cases, there must be a two-thirds majority for a judge to be successfully elected.
Fraught process to elect judges
The procedure is always highly political because the court is seen as a pillar of German democracy, a symbol of the separation of powers in the German system and a defense against any politics that work against German citizens’ basic rights.
Although the process has never been as emotionally heated as the selection of judges for the US’ Supreme Court, there have been occasional controversies around candidates.
One such instance was the 2011 candidature of lawyer Peter Müller. Müller was also a politician and had only just resigned from his post as the state prime minister of Saarland. He is also a member of the conservative Christian Democratic Union, or CDU. Obviously he was not a neutral candidate for the court — he had openly been against the immigration policies of the then-left-leaning federal government — and his application was viewed with some skepticism.
Despite this, the Bundesrat voted unanimously to appoint him to the Federal Constitutional Court. Those voting for him included state prime ministers who belonged to the then-ruling, left-wing parties like the Social Democrats and the Green party. Müller left the court in 2023.
As the German media outlet, Legal Tribune Online, points out, the court’s mixture of opinions is exactly why it is so respected. “The Karlsruhe court thrives on its pluralistic composition,” the legal specialists wrote this week. “In their collective decision-making process, the 16 judges must argue and persuade … the court’s working practices depend on this collaboration resulting in constitutionally sound decisions.”
How a respected law professor became controversial
The Federal Constitutional Court candidate at the center of the controversy, Frauke Brosius-Gersdorf, is not a politician. She is a highly respected constitutional law professor at the University of Potsdam.
Brosius-Gersdorf has repeatedly dealt with difficult areas of jurisprudence, including abortion and how the Basic Law’s ideals about human dignity apply to both mother and unborn child. Basically, when it comes to these tricky questions, she is doing her job, just as she is supposed to.
However last Friday, her candidature for the Federal Constitutional Court appeared to fail. Germany’s governing coalition — with the conservative CDU in the majority and the left-leaning Social Democrats a minority partner — withdrew the election of judges from parliamentary agenda.
It had become clear that the CDU and their junior partner, the Christian Social Union, or CSU, were way too resistant to Brosius-Gersdorf. That was despite the fact that the parliamentary committee selecting the three candidates had previously expressed broad, cross-party support for Brosius-Gersdorf.
Was there a campaign against Brosius-Gersdorf?
For Philipp Sälhoff, head of Berlin-based political consultancy Polisphere the answer is clear. “Yes, there was a campaign,” he told DW.
His consultancy examined 40,000 related posts on the platform X (formerly Twitter).
According to Sälhoff, all the elements one might expect to see in a targeted campaign were there. “Online petitions, calls to action, formulas for [protest] letters you can send to your member of parliament, paid-for advertising and posts, or the networking of actors on social media with one clear goal: preventing the election of this candidate,” he explained.
Reports in traditional media are not part of this, Sälhoff explains: “A critical political report isn’t part of such a campaign, rather they’re legitimate and necessary when it comes to how members of parliament vote, including on Federal Constitutional Court judges.”
The problem is that the campaign on social media was manipulative and became increasingly problematic as disinformation and aggressive exaggeration won over the facts, he noted.
Law professor attacked
According to Polisphere’s research, the agitating done by right-wing organizations like Nius were particularly notable. This online platform, founded by German billionaire Frank Gotthardt who had the intention of making it into this country’s version of Fox News, was shooting at Brosius-Gersdorf from all barrels, and mostly with defamatory and false information.
The law professor was described as a “left-wing radical,” an extremist who would have allowed babies aborted at nine months and who was against freedom of opinion. These sort of untruths were peddled to an audience of millions and other far-right media followed suit.
When it was announced that the vote on the Federal Constitutional Court judges had been called off, Nius’ editor-in-chief, Julian Reichelt, celebrated. “This is a good day for us,” he said. “Nobody recognized that there are now new media who won’t play along with the [mainstream] political-media complex.” In other words, he saw the campaign against Brosius-Gersdorf as a victory over established German media.
Julian Reichelt, the controversial editor-in-chief of Nius, was dismissed from his previous job at the tabloid Bild after he was accused of misuse of power and inappropriate behaviour with younger female staffImage: Bernd von Jutrczenka/dpa/picture alliance
Polisphere’s Sälhoff sees reasons for concern in Reichelt’s proclamation of victory.
“It’s not about whether these kinds of media impact opinions in Germany — they’ve been doing that for a while already,” he explained. “But to engineer a situation like this in Germany’s parliament in such a short time, where it was exposed more or less out of nowhere, and right in front of the eyes of the German and the international public — that’s certainly success for them,” Sälhoff said.
Of course, at the same time members of parliament make decisions of their own accord. Campaigns, no matter what flavor, are part of the political scenery and they regularly drum up support, regardless of one’s political persuasion.
This is why CDU member and former Federal Constitutional Court judge, Peter Müller, believes the fault lies with his own party’s leadership.
“This is a blatant failure of leadership by the CDU/CSU,” he said in an interview with German daily Süddeutsche Zeitung. “Something like this shouldn’t happen.”
Apparently shortly before the scheduled election of the judges, CDU leader and current Chancellor Friedrich Merz and CDU parliamentary group leader Jens Spahn had signaled they expected party members to support Brosius-Gersdorf’s candidacy. But apparently they were not listened to.
German Chancellor Friedrich Merz (left) and party chief Jens Spahn: As one German commentator on social media put it, apparently Nius had more influence over the party’s members than their senior politicians didImage: Katharina Kausche/dpa/picture alliance
What happens next?
For the time being, the vote for new Federal Constitutional Court judges has been taken off the parliament’s agenda.
Following that, in a long television interview with one of Germany’s best known talk show hosts, Brosius-Gersdorf took on a lot of the accusations that had been made against her, saying she was neither radical nor extremist. She also tried to explain her position on various issues from a legal point of view.
When asked whether she would continue to seek a spot on the bench, the 54-year-old replied that if there was any danger posed by her candidacy to the court itself, she would withdraw her nomination.
This story was originally published in German.
