Germany to elect new Constitutional Court judges: Why is it important?

On September 25, members of the German parliament will elect three new Constitutional Court judges. Why is the vote happening now and why is it significant?

Bundestag to vote on three new Constitutional Court judges

On Thursday, members of the German parliament (Bundestag) will vote on appointing new judges to the Federal Constitutional Court (Bundesverfassungsgericht). The Bundesverfassungsgericht has a total of 16 judges, and three of these positions need to be newly appointed.

Candidates for the role are initially reviewed by the Bundestag’s Judicial Election Committee, which is made up of 12 members of parliament. The Committee selects three candidates. Now, all 630 members of parliament will vote on whether to elect the three chosen candidates.

The candidates are Sigrid Emmenegger, currently a judge at the Federal Administrative Court in Leipzig, Günther Spinner of the Federal Labour Court in Erfurt and Ann-Katrin Kaufhold, professor of constitutional law in Munich.

Prospective constitutional court judges require a two-thirds majority vote from Bundestag members to be elected. Once elected, they can hold their position for a maximum of 12 years.

What is the job of a judge in the Bundesverfassungsgericht?

The Bundesverfassungsgericht and its 16 judges are tasked with protecting the German Constitution (otherwise known as the Deutsche Verfassung, Grundgesetz or Basic Law).

Germany’s Basic Law was passed in 1949 and comprises 146 articles. The first 19 articles of the Basic Law outline fundamental rights in Germany, including human dignity, personal freedoms, and equality before the law.

The Bundesverfassungsgericht was established in 1951 and is responsible for ensuring that the government of the day adheres to the Basic Law. If not, judges can declare legislation unconstitutional, and it can be scrapped.

“The Court must not take into consideration questions of political expediency in its decisions,” the Bundesverfassungsgericht website explains, “Rather, its task is to determine the constitutional framework within which policies can unfold.”

Why is the vote happening now?

Voting in the three new constitutional court judges was already on the Bundestag agenda before parliamentarians broke for summer recess in early July. But a spanner was thrown in the works.

The governing CDU/CSU-SPD coalition does not have a two-thirds majority in the Bundestag and requires support from the Greens and the Left Party. 

The SPD had supported law professor Frauke Brosius-Gersdorf for the position. The Greens and the Left had said they would support the coalition to elect Brosius-Gersdorf. 

But shortly before the vote, 20 CDU members said they would no longer support Brosius-Gersdorf because of her 2024 recommendation that Germany decriminalise abortion in the first 12 weeks of pregnancy.

The vote on Brosius-Gersdorf’s appointment was initially postponed, and then the vote on all three candidates’ appointments was postponed. In August, Brosius-Gersdorf withdrew her application for the position, explaining that she didn’t want the scenario to widen rifts in the CDU/CSU-SPD coalition or have an unknown impact on German democracy.

In September, the SPD nominated 51-year-old Emmenegger for the role instead, who is generally expected to receive the two-thirds majority needed for appointment on September 25.