No desire for a culture war: Why this judge can destroy the Union
The problem facing the CDU/CSU leadership at this time is enormous. And it's not just that they want to vote for Frauke Brosius-Gersdorf as a judge at the Federal Constitutional Court, a lawyer nominated by the SPD and considered persona non grata by many CDU and CSU members of parliament. A woman considered a left-wing radical in conservative and right-wing circles. The CDU/CSU's problem is also that they apparently didn't see the heated debate surrounding Brosius-Gersdorf coming. That they didn't anticipate how politically charged a judicial election in 2025 could be.
It appears that the Union was unprepared for this culture war. Yet it was to be expected, given that it is already raging in other democracies, such as the United States .
On Friday, the Bundestag will vote on three candidates for the Federal Constitutional Court. And rarely has this routine event caused such intense turmoil, on social media and in parliament. The CDU/CSU is fielding Günter Spinner, a judge from the Federal Labor Court. Running on the SPD ticket alongside Frauke Brosius-Gersdorf, who teaches at the University of Potsdam, is Katrin Kaufhold from the Ludwig Maximilian University of Munich . The coalition had agreed on the names after the Greens rejected a candidate from the CDU and CSU last year. As for the CDU/CSU, however, many members of parliament apparently only learned about the SPD's proposals very late.
This is now taking its toll, and the situation is already complicated enough. Since candidates require a two-thirds majority of the members present, the CDU/CSU and SPD are dependent not only on the Greens in the secret ballot, but also on votes from the Left Party and AfD . It could end up being a close call for all three candidates. But no other candidate is being contested as fiercely in advance as Frauke Brosius-Gersdorf.
The name is probably still unknown to most Germans, despite all the excitement. It's been circulating on Platform X for days, is being commented on in right-wing conservative media, and has finally made it into all major newspapers. The reason for this is some of the legal scholar's statements in talk shows and articles. Her membership in the "Commission on Reproductive Self-Determination and Reproductive Medicine" has also been criticized. The committee was appointed by the "Traffic Light" government and dealt with, among other things, the topic of abortion.
Frauke Brosius-Gersdorf has previously advocated for a motion to ban the AfD, provided there is sufficient evidence to support it. She advocated for mandatory vaccination against COVID-19 and a liberalization of abortion law. "There are good reasons why the guarantee of human dignity only applies from birth," the lawyer wrote in the expert commission's report. It is this sentence, in particular, that outrages conservatives.
The Union suffers from Brosius-Gersdorf feverAt least since Wednesday, when Friedrich Merz affirmed in the Bundestag when asked whether he could reconcile her election with his conscience, the CDU/CSU has been suffering from Brosius-Gersdorf fever. The chancellor has offended many of his party colleagues. Some had already expressed their displeasure with the candidacy at a parliamentary group meeting on Monday. On Thursday evening, shortly before the judicial election, a prognosis is almost impossible. Although the Left Party is likely to support Brosius-Gersdorf, as reported by Der Spiegel, the lawyer could fail if too many CDU and CSU MPs say no, abstain, or stay away from the vote.
Some within the parliamentary group consider this a possibility. It would be a bitter setback for the young coalition, and especially a blow to the CDU/CSU. It would be clearly disunited. The vote with the AfD on the migration plan during the election campaign already alarmed numerous members of parliament. The special fund for infrastructure, the gigantic debt, has caused many problems. Recently, there was the anger over the electricity tax, which is now not going to be reduced for everyone. And now a left-wing judge?
However, an interesting divide is emerging regarding the mood within the CDU/CSU. Crisis talks are underway at the federal level, and it is said that the parliamentary group leadership around Jens Spahn intends to mediate. For Spahn, the vote will be a test: Does the parliamentary group leader have the support of the party? A special meeting is planned for Friday morning, and the powerful business wing, the PKM, apparently wants to consult in advance. A member of the Bundestag wrote via text message that the mood within the parliamentary group is currently difficult to assess. "In any case, a massive response from members and regular voters. Many letters. All requesting that the judges be rejected." Alarm bells in Berlin, then.
Meanwhile, some state politicians also report receiving letters, but appear less alarmed. "We are receiving increasing numbers of inquiries from members and citizens. There is no enthusiasm for this appointment," says Gordon Hoffmann, CDU General Secretary in Brandenburg , to the Berliner Zeitung. Ultimately, however, Hoffmann says it is a coalition agreement, and the conservatives are sticking to their agreements.
Klaus Natterer, a local politician from Baden-Württemberg and deputy chairman of the CDU district association of Breisgau-Hochschwarzwald, speaks of a "Berlin wrangling." In his region, among members, the election of judges is not an issue. "That's a bit far-fetched," he says. The lawyer's views can be discussed, of course, and Brosius-Gersdorf herself is welcome to reconsider her positions. But they are not her only ones. Natterer is right about that. The legal scholar has also spoken out in favor of raising the retirement age. That is anything but left-wing, but it is also not an ingredient in the socio-political culture war.
The words of CDU member Klaus Natterer testify to a composure in the Federal Republic that seems to be becoming rarer. At least, this applies to debates in the Bundestag, which has already voted on many judicial candidates. These have always been politically tinged, some more than others. That's the nature of the matter; people are human, and ultimately, parties deliberately select their candidates. Ultimately, the judges of the Federal Constitutional Court should also reflect the political spectrum.
What's new in all of this is the strength of the AfD. The CDU/CSU, which has a resolution declaring incompatibility with the far-right party, can't—and currently doesn't want—to form a coalition with the SPD or the Greens, i.e., with partners to the left of center. The FDP has withdrawn from its role as a bourgeois force for the time being. The AfD is taking advantage of this. It is attacking the CDU/CSU not only on migration issues, but also on sociopolitical ones—be it rainbow flags at city halls or, now, the issue of abortion.
The debate over Brosius-Gersdorf is so heated because it "brightly reveals the realities of the political center," says Andreas Rödder, who is considered by many to be a leading thinker of the conservative CDU. The historian heads the think tank Republik 21. "The CDU/CSU is abandoning its candidate, criticized as too conservative, while the SPD is stubbornly sticking with its candidate, criticized as too left-wing. The self-proclaimed 'center' in Germany represents a red-red-green dictate over the CDU/CSU, and the CDU/CSU is faced with the question of whether to submit to this dictate," Rödder told this newspaper. He describes this judicial election as a symbol of the balance of power in the country.
The Union has several options to free itself from this "dictate." It could have spoken out against Brosius-Gersdorf early on, but it underestimated the culture war that has long engulfed its own ranks. It could still distance itself from the lawyer now, which would trigger a government crisis – and also eliminate a majority for its own candidate. And yes, in the future it could open up to the AfD, seek talks, even abandon the incompatibility resolution. There is no prominent Union politician openly calling for this today. But everyone knows that the majority in the Bundestag sits to the right of center. The Union is in a bind.
The fact that the church is also reminding them of their values doesn't make things any easier. During the election campaign, some church representatives appealed to the CDU and CSU to maintain their distance from the AfD. However, the "fight against the far-right" has never been part of the CDU's DNA. However, the fact that two Catholic bishops from Bavaria have now joined the discussion about the judicial election must concern them. The CDU and CSU still have the letter C in their names.
Anyone who believes "that the embryo or fetus in the womb has no dignity and only a lesser right to life than a human being after birth" is conducting a radical attack on the constitution, the bishops write. Any relativization of Article 1 of the Basic Law must be an "exclusion criterion" for election as a constitutional judge.
After this Friday, the leaders of the CDU and CSU will have to address the question of why they didn't see all this coming. Andreas Rödder has already found an answer. "In its traditional pragmatism, the CDU/CSU tends to make decisions based on power-political and tactical considerations and underestimate their strategic, political and cultural significance," he says. This is "about setting the course in the normative structure of German democracy." Pragmatism is causing the CDU/CSU to cut off the branch it's sitting on, says Rödder.
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