Bundestag | Union snubs Parliament and Constitutional Court

It was foreseeable that the election of three new judges to the Federal Constitutional Court this Friday would be controversial. However, it was not expected that it would end in a debacle and not take place at all.

On Monday, the Bundestag's electoral committee voted with the required two-thirds majority to appoint Federal Labor Court judge Günter Spinner, nominated by the CDU/CSU, and the two law professors Frauke Brosius-Gersdorf and Ann-Katrin Kaufhold, nominated by the SPD, as new judges at the Federal Constitutional Court. Afterward, the main question seemed to be the majorities with which they would be elected in the Bundestag. The AfD had declared its support for the CDU/CSU candidate, while Die Linke had declared its support for the SPD candidates. Debates began about the possible two-thirds majority of the CDU/CSU-SPD coalition with the AfD. Among those close to Die Linke , there was discussion about whether Die Linke should not include Spinner in the election to make the AfD obsolete.

The debates proved obsolete because tensions began to simmer within the CDU/CSU at the same time. A campaign against Frauke Brosius-Gersdorf had been running for some time, driven by the Christian fundamentalist "pro-life" scene. Right-wing media outlets such as Julian Reichelt's "Nius" gave the campaign reach and escalated its impact. Brosius-Gersdorf, a liberal lawyer, was portrayed as a pro-abortion, left-wing activist. During the government questioning on Wednesday, AfD politician Beatrix von Storch asked the Chancellor whether it was in his conscience to elect a lawyer "who denies a nine-month-old baby human dignity two minutes before birth." Merz answered "yes." Right-wing and Christian fundamentalist media, politicians, and media figures pounced on the dialogue, portraying it as Merz's break with Christian-influenced politics.

The outcry caught on, and more and more MPs contacted CDU/CSU parliamentary group leader Jens Spahn, expressing their dissent. The number of dissenters reported to the media fluctuates between 30 and 60. On Thursday evening, the more than dubious "plagiarism hunter" Stefan Weber also spoke out via Platform X. In a post, he suggested that Brosius-Gersdorf had copied her husband's habilitation thesis for her dissertation. The "plagiarism hunter," who had been convicted of defamation, did not mention that Brosius-Gersdorf's husband's dissertation was published later than her dissertation. However, the vague accusations were enough for the CDU/CSU. On Friday morning, Jens Spahn and Friedrich Merz informed the SPD that they wanted to remove Brosius-Gersdorf's election from the agenda. The Social Democrats were dismayed, and parliamentary group meetings ensued.

Subsequently, the SPD and the CDU/CSU moved to remove all three judicial elections from the agenda. In a brief debate on the rules of procedure, the SPD parliamentary group's parliamentary manager, Dirk Wiese, also spoke out clearly. He spoke of damage to the Federal Constitutional Court and a witch hunt against a respected lawyer. He reminded his coalition colleagues from the CDU and CSU that the SPD had "stood down" on difficult decisions. "In the future, I expect others to also stand up for such difficult decisions."

Britta Hasselmann, parliamentary group leader of the Green Party, expressed similar sentiments: "An event like this, such a disaster, has never occurred in the history of elections to the Federal Constitutional Court in this House. And you, Jens Spahn, bear the primary responsibility for it." Heidi Reichinnek, parliamentary group leader of the Left Party, echoed this sentiment. She accused the CDU/CSU of having "thrown Frauke Brosius-Gersdorf to the wolves" of the right. The way the lawyer was treated was an "absolute scandal." Reichinnek concluded: "Every time you think the CDU/CSU can't sink any lower, you come along, Mr. Spahn, and unpack your shovel."

Steffen Bilger, parliamentary manager for the CDU/CSU parliamentary group, participated in the debate. He stated that the discussion about Frauke Brosius-Gersdorf had gotten out of hand. It would be good if these doubts could be clarified now. On Friday afternoon, Bundestag President Julia Klöckner announced that the election of judges would be rescheduled for the first week after the parliamentary summer recess in September. Which candidates would be chosen remains to be seen.

Numerous lawyers and legal associations expressed concern on Friday. The German Association of Women Lawyers, the New Association of Judges, and the German Women's Council declared in a joint statement that the campaign against Frauke Brosius-Gersdorf seriously undermines democratic processes. The organizations warn against abandoning the candidate for the judicial office based on unproven allegations. "When political actors push candidates out of the process at the last minute after the conclusion of conciliation processes and without solid evidence, this undermines trust in the stability and neutrality of our constitutional bodies," the three organizations sharply criticize the CDU/CSU parliamentary group.

Bijan Moini, Legal Director at the Society for Civil Rights, sees the CDU/CSU as a threat to democracy. "If it doesn't get itself under control—the misanthropic populism, the culture-war rage, the systematic untruths, the opportunism, the lack of accountability—I see a bleak future," he writes on the Bluesky platform. Also there, Maximilian Pichl, Chairman of the Association of Democratic Lawyers, expresses a concern for the future : "Who among the liberal lawyers will still stand for election to the Federal Constitutional Court if this continues? The collateral damage to the judiciary is immense."