The German parliament failed to complete one of its more important constitutional tasks before it went into summer recess in July. A planned vote to fill three vacancies at the Constitutional Court was removed from the agenda at short notice after it became apparent that one of the candidates, jurist and professor Frauke Brosius-Gersdorf, would not receive enough votes because of a lack of support from conservatives in the ruling bloc.
The governing parties — the ruling center-right bloc of the Christian Democratic Union (CDU)and Christian Social Union (CSU) and their junior partner, the center-left Social Democratic Party (SPD) — do not command a two-thirds majority in the Bundestag. To put together the two-thirds majority required for the appointment of judges, support from the opposition is needed.
This was not supposed to have been a problem, as the opposition Greens and the Left Party had signaled that they would vote for Brosius-Gersdorf, who had been nominated by the SPD. But then it emerged at the last minute that more than twenty CDU lawmakers would not support her — especially because of her liberal stance on abortion.
The far-right Alternative for Germany (AfD), the second biggest faction in the parliament, had already made clear they were vehemently opposed to her nomination — unsurprisingly, as she had also suggested she would be in favor of banning the party if the necessary legal requirements were fulfilled.
Frauke Brosius-Gersdorf’s views on abortion became a sticking point for some members of the CDUImage: Britta Pedersen/dpa/picture alliance
AfD: ‘This judge is unacceptable’
A few hours before the planned vote, the CDU demanded that the SPD withdraw Brosius-Gersdorf’s nomination, citing new allegations that she might have plagiarized her PhD dissertation in 1997, which were later dismissed.
The Bundestag session was interrupted and, after crisis talks, the Bundestag voted to postpone all three scheduled elections. The CDU/CSU parliamentary group leader, Jens Spahn, was left looking bad, as he had failed to anticipate the level of opposition to the candidate and did not manage to rally the troops.
Heidi Reichinnek, head of the socialist Left Party parliamentary group, blamed the CDU for the parliamentary impasse: “You are playing party political power games here and once again causing absolute chaos.” The leader of the Green Party, Britta Hasselmann, shared this view: “Today is a bad day for parliament, for democracy, and for the Federal Constitutional Court.”
The Constitutional Court in Karlsruhe is supposed to safeguard the German Basic LawImage: Udo Herrmann/CHROMORANGE/picture alliance
The judicial pillar of the German state
The Federal Constitutional Court is one of Germany’s five organs of state. The other four are the lower house of parliament (Bundestag), the upper house of parliament (Bundesrat), which represents the state governments, the president, and the federal government. Together, they ensure the separation of powers, one of the core principles of a democratic society.
The Constitutional Court’s role in this system is to safeguard Germany’s constitution, known as the Basic Law. Half of the 16 judges are elected by the Bundestag, while the Bundesrat elects the other half. A two-thirds majority is required in each case. If this is achieved, the federal president officially appoints the successful candidates as new members of the court.
The state institutions are closely entwined in this election, which is why the parties represented in parliament, who nominate candidates for the court, are particularly dependent on coordination.
The SPD has named 51-year-old judge Sigrid Emmenegger as a candidate for the constitutional courtImage: Justizministerium RLP/dpa/picture alliance
Crisis mode in governing coalition
In August, Frauke Brosius-Gersdorf withdrew her application.
“Parts of the CDU/CSU have categorically rejected my election,” she wrote in a statement, adding that she didn’t want the election process to widen the rift in the coalition and lead to developments with unknown impacts on democracy.
She also said that the SPD had stood by her “to the end” and said she had received “great support” from the Greens and the Left Party.
The failed vote marred the final session of parliament before the summer recess. Since then, the parliamentary group leaders of the CDU, CSU and SPD have been keen to demonstrate unity.
In September, the SPD named 51-year-old judge Sigrid Emmenegger as a candidate for the constitutional court. She has the backing of the Judicial Appointments Committee, as do the other two candidates: SPD-appointed Ann-Katrin Kaufhold and CDU/CSU-appointed Günter Spinner.
The vote in the Bundestag is scheduled for Thursday, September 25, and is widely expected to yield the necessary majority.
This article was translated from German, it was first published on the day of the failed vote.
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