Die Richterwahl zum Bundesverfassungsgericht (German Edition)

The BVerfGG adds several other statutory aspects. First, to support the election process, the Minister of Justice keeps lists of all eligible judges of federal courts of last instance called federal judges and of all other persons that have been proposed. These lists are, however, not binding. Neither the Constitution nor statutory law, however, appropriately reflect the election process.

Most of all, they ignore the dominance of party politics. Very much unlike the United States, a compromise of the two major parties the Social Democrats and the Christian Democrats is, therefore, necessary for every single election. To avoid major political battles and debates each time a new justice must be found, the political parties have agreed on a scheme that has determined the entire procedure for decades.

In addition, the two major parties have each given one of the six posts reserved for actual party members over to the two minor German parties, the Liberals and the Greens. This is, surprisingly, a higher degree of formalization than that achieved for the—statutory—provisions on former federal judges, where the post is not fixed, so that the post of a former federal judge can be filled with a non-judge as long as the total number of former federal judges on a senate does not fall below three.

The system of party affiliation mostly runs smoothly. For so-called neutral candidates, it is even usual to seek the full consent of the other party, while for party members, objections would only reluctantly be raised. He was proposed by the Social Democrats, but firmly rejected by the Christian Democrats, who publicly announced their dislike for his opinion on the protection of embryos in biological research and completely rejected his somewhat relaxed position on the admissibility of torture in cases of extreme hardship.

The informal rules on party affiliation of Justices have, over the years, proven to be remarkably stable and effective. Even when a particular election was highly debated, the basic principles have never been called into question. Thus, for instance, when Horst Dreier was not elected, it was undisputed that the Social Democrats had retained the right to propose an alternative candidate.

The informal system of party affiliation has even managed to practically override not only the official, but irrelevant lists of possible candidates kept by the Minister of Justice, but also the constitutional differentiation between Justices elected by the two legislative chambers. The party agreement on candidates is completely independent of the body that is formally called to vote. This becomes particularly evident when package deals are struck, where parties agree, in advance, on several positions to be filled in the near future. In fact, even in legal discussions, elections by the Bundesrat do not gain much attention, the entire discussion being centered on the Bundestag and its committee.

The only potential player left, besides political parties, is the Constitutional Court itself. Its own propositions are, of course, not binding, but they can prove to be a powerful tool. The Court ignored the not-so-subtle hints and submitted an independent proposal. This bold move proved to be highly successful. After this incident, however, the political parties became more careful, 17 but so did the Court itself which, since the end of the s, does not publish or provide any information on the content or even existence of its proposals.

Even in the heated incident of , the Court did not try to depart from the system and only proposed candidates that were members of the Social Democrats. But even this informal, if well-known and effective, system is not the end of the story. The real decision about who will become a justice is not taken in parliament, as the Constitution provides; nor is it taken by the parliamentary committee as provided by statute; nor is it taken in a more or less open debate within the political parties or even among the party leadership.

Even members of parliament often do not know how the decision in favor or against certain persons was taken or who exactly stood a chance. Rather, the decisions are taken in very small circles. There seem to exist in formal working groups into which the parliamentary party groups, the so-called factions, send their representatives and about which hardly anything is known. These chairpersons are charged with finding the right candidate on a long-term basis, and function as the main contact for the respective other party when it comes to finding a consensus, sometimes, it seems, with the support of other high-ranking party officials.

It seems, however, plausible, from a political point of view, that they lead the negotiations rather than make the decision completely by themselves 24 —although the difference between the two can be difficult to determine, and much will depend on the standing and the personality of a given individual.

Their identity is not widely known, but can be discerned by interested persons. A recent change might have altered the power structure somewhat in favor of the parliamentary committee. Since the beginning of , the committee has informally started to resort to a purely internal and therefore unpublished hearing of the final candidate who has been proposed by the respective party.

Such a meeting can, for instance, forestall possible public criticism of the candidate by other parties if all members of the committee are satisfied that the candidate would be suitable.

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Many reforms to this arcane election procedure have been unsuccessfully proposed over the years. The idea of a public hearing finds its inspiration in the US procedure for electing Supreme Court Justices. Possible candidates appear before an election body and publicly answer questions. Not only could it not fulfill any of the objectives commonly associated with a public hearing, but its very existence is generally ignored by scholars and the general public alike. As far as the bodies electing justices are concerned, there have been several proposals to eliminate the election committee in favor of a direct vote of the Bundestag.

Finally, several minor proposals have been made to change the voting procedure, the most surprising of which is probably choosing justices exclusively by drawing lots among all federal judges 33 —an idea that is similar to some forms of filling public offices sometimes practiced in antiquity.

It is easy to condemn the influence of political parties. What is more, specifically in the judicial context, party influence may be seen as politicizing a judicature that must base its decisions solely on legal, rather than on political, arguments. Additionally, parties might be tempted, in selecting a candidate, to place greater emphasis on party affiliation than on expertise in the field of constitutional law.

The dominant role of German political parties in general has been frequently and in many respects criticized. Politically, their role may, indeed, be regarded with some skepticism. From a constitutional law point of view, however, parties play an important, valuable, and legitimate role in our parliamentary democracy. The Grundgesetz is not based on an idealized view of the people as a harmonic whole, forming a unitary will which is then brought to bear through parliamentary representation. Such an idea of identity between the ruler and the ruled would only provide and has provided a perfect platform for anti-democrats, 41 since democracy in the real world could never live up to such expectations and would only appear to be a cynical mockery of real representation.

These limits are particularly narrow in the judicial branch, due to the constitutional guarantee of judicial independence art. Accepting an important role for political parties in the selection process does not, however, necessarily imply that the justices themselves will be selected according to party affiliation. Rather, one could imagine parties relying mostly, or exclusively, on individual legal qualification.

It would be wrong, however, to suppose that the current system ignores quality. Quite on the contrary, nobody has ever seriously doubted that the persons elected to be justices are highly qualified. This is even assured by the current system, since any candidate with high political, but only minor legal, qualifications would be a very easy target for the opposing political party.

The only lamentable result of the current system is, therefore, that many highly qualified individuals will never be taken into consideration because they have never come to the attention of any party.

These considerations aside, the whole idea of a purely legal qualification is misguided. However, and in spite of the high degree of formalism prevalent in German law and among German lawyers, 48 it is accepted that the application of legal norms to facts is not a purely logical procedure, 49 but influenced by legally filtered value judgments. In other words, party affiliation is not important as such, but as an expression of the general outlook a Justice takes on the world. In this sense, the alternative solution—selecting truly neutral judges without any party affiliation—makes a promise it cannot keep: The proportional selection of justices through party affiliation is thus not the illness, but rather the most reliable cure—even if the medicine may well appear somewhat bitter.

The German reliance on party affiliation is thus one of the main reasons for the high degree of stability that continues to characterize the German Constitutional Court as well as its jurisprudence. The ensuing interdependence between the stability of the Court and the stability of the German party system could be regarded as a cause for concern, since the party system has been recently undergoing increasing pressure. The importance of the two traditionally dominating parties, the Christian Democrats and the Social Democrats, is waning; the Liberals are in danger of disappearing; the Green Party is still growing and endangering the traditional place of the Social Democrats; the so-called Left Party has established itself; and the so-called Pirates have, for a short time, seriously started to enter the political scene, but with less success than anticipated in earlier comments.

Where these developments will lead is uncertain. The system of party affiliation for justices has, however, shown to be resilient in the past. It has accommodated the rise of the Green Party as well as the possibility that the Liberal party is not always needed to find a majority in parliament to elect the chancellor. It has also not reacted to the continuing existence and importance of the successor party of the former socialist party ruling the GDR, causing very little, if any, debate. If future changes in the German political landscape should establish themselves permanently, it is therefore likely that the election system will respond—slowly, but effectively.

There seems to be a simple solution to the current lack of transparency in the selection process: Instead of a clandestine procedure, all candidates could present themselves and be asked questions by members of parliament, thus establishing a high degree of publicity and enabling all citizens to form their own opinion.

Internal party circles would lose a lot of influence. The problem with such a proposal is not the potential benefit of a public hearing, but its reality as exemplified by the US example. A general inquiry into the publications, former decisions, legal as well as ethical opinions of the candidates, even putting their personality and integrity to the test, is an approach that hardly any German jurist would like to see transferred home. Extreme examples like the events surrounding the nomination of Robert Bork or Clarence Thomas add to the general dislike.

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The description of the Clarence Thomas hearings as the battlefield of a veritable political war 57 reveals exactly what German jurists would want to avoid at all costs. In order to achieve a more restricted and civilized hearing, several, often conflicting, ways have been proposed, aiming to limit the range of admissible questions. There is, indeed, a possibility that selection hearings in Germany could be held in an objective and professional atmosphere, just like in former times a positive attitude towards the candidate used to prevail in the United States.

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While there is no struggle between executive and legislature, thanks to the German parliamentary system, there is struggle between political parties. It would be unrealistic to expect parties to show a degree of self-restraint so high that they would voluntarily forgo a chance to ask unacceptable questions that would, however, guarantee media coverage, thus raising their profile with potential voters.



This would be especially true in times of political turmoil, in the case of controversial candidates, and of the smaller parties which would in all likelihood have a chance of asking their questions as well. What is more, the different positions taken even now in the literature on the admissibility of certain questions, for example questions about general political views, reveal that the limits of the necessary self-restraint are rather open to discussion.

Too limited a catalogue of admissible questions would risk turning the hearing into a sham since nothing valuable could be gained from it. If, however, questions regarding obvious facts on the record make little sense, and legal qualifications can hardly be determined, the only questions that remain are those about personal and political opinions—exactly those that most experts want to exclude.

In other words, hearings might lead to more transparency, but at the cost of politicizing and ideologizing the selection process even further. What is more, the German hearing would not be a confirmation hearing for one candidate, as in the United States, but a selection hearing among several.

Thus, there would be a strong competition among the candidates as well as among the groups that sponsor them. This would produce two additional dangers. First, a number of highly qualified candidates might refuse to participate. This would be all the more understandable since—unlike in the United States 65 —there would always inevit ably be one or more losing candidates who would later be hard put to remove the stigma of defeat.

Under the current German system, there are often only a few persons who know, or could at least suspect who had originally been considered for the post but not made it. Second, public hearings would always favor candidates who have an aptitude for public appearances and who know how to handle the crowd as well as the press. The Constitutional Court might well need such persons, as well. But it would be an enormous waste of potential if excellent lawyers would stand no chance simply because their public appearances are less stimulating, less witty, or less charming.

One of the most often criticized aspects of the election process is the delegation of decision-making to a mere parliamentary committee. Indeed, this delegation is unconstitutional—but not for the obvious reasons and despite the fact that it constitutes good policy. In a nutshell, 66 the committee solution might not be the best solution imaginable, but it is the best possible one. It allows parties to discuss potential candidates in a small and professional circle where all may speak openly, regardless of election campaigns or representation in the media.

Such an open debate could not, under German conditions, be achieved in parliament. If the committee were to be abandoned, the real decision would in all likelihood be transferred to even more informal groups, with parliament only adding its consent. The current election committee, opaque as it may be, adds at least some element of control and predictability.

From a legal point of view, article 94 1 phrase 2 GG grants the power to elect Justices to the Bundestag itself and does not mention any delegation to an election committee. This contrasts vividly with article 95 2 GG which, with respect to electing other federal judges, explicitly calls for the creation of such a committee. On the other hand, such a result would imply that the election must be a direct and not an indirect one—a requirement that the Grundgesetz usually makes expressly cf. Consequently, arguments based on the wording and the systematic structure of the Constitution—which might seem formalistic, simplistic, or simply irrelevant in American eyes but are considered important in German law 68 —do not yield any clear results.

Neither can the current election committee be considered unconstitutional because it is itself only elected by parliament and not directly by the people, thus lacking the necessary degree of democratic legitimation. The real constitutional problem lies simply in the right of any member of parliament to vote on all issues art.

While the work of parliamentary committees does not, in general, infringe upon that right, this result is based on the assumption that parliamentary committees may well prepare decisions and thus gain enormous factual influence, but that the final decision will be taken by parliament itself. The remedy for this unconstitutionality would, however, be quite simple.

The entire procedure could remain unchanged, with only a final yea or nay vote of the Bundestag added to the decision of the committee, a vote that would not even require any prior debate. The German Constitutional Court, in its very first decision on this topic in June , decided to follow this line of thought insofar as it treats the lack of influence of all members of parliament in the election process as the main problem. Its conclusion, however, is different. In essence, it has found a value of sufficient constitutional weight to justify the infringement of article 38 1 phrase 2 GG: First, it relies on a justification of the factual disempowerment of members of parliament which has, until now, been used only rarely and very reluctantly, for example in the context of intelligence service finances or, more recently, concerning urgent measures to solve the European debt crisis.

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Committee for the Election of Judges is the name of bodies in the German judicial system that elect the judges of the ordinary courts ordentliche Gerichte and the special courts besondere Gerichte on the federal level Bundesebene and in some cases also on the level of the states Landesebene. The source of law for the federal Richterwahlausschuss is Art. Members of the Richterwahlausschluss are the sixteen ministers of justice of the German in some states called senators and sixteen further members which are chosen by the lower house of the German parliament Bundestag - BT.

Members of the Richterwahlausschuss do not have to be judges themselves, and usually they are not. Candidates for the federal judges are chosen by the federal minister of justice Bundesjustizminister or the Richterwahlausschuss.

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The federal minister of justice then sends the file of the candidate to the Richterwahlausschuss. The Richterwahlausschuss makes the decision in a secret ballot with a simple majority of the votes cast. The federal president together with the federal chancellor Bundeskanzler or the federal minister of justice appoints the judge.

In five states all in the old FRG the election and appointment of judges is taking place only within the state ministries of justice without the involvement of a Richterwahlausschuss. The election and appointment of judges is taking place only within the state ministry of justice without the involvement of a Richterwahlausschuss. However, if the governing body of the court in question rejects the chosen candidate, a Richterwahlausschuss is appointed to solve the conflict.

Members of the Richter-Wahl-Kommission are the speaker of the Bavarian parliament and nine of its members.

Bundesverfassungsgericht

Richterwahlausschuss has 14 members of which nine are members of the Hamburg parliament, vide Art. Richterwahlausschuss has 13 members of which seven are members of the Hessian parliament, vide Art. Richterwahlausschuss has 11 members of which eight are members of the Rhineland-Palatinate parliament, vide Art.