Former President of the Federal Constitutional Court, Hans-Jürgen Papier, is advocating for a revised approach to the selection of judges for Germany’s highest court.
In comments published Tuesday, Papier asserted that the current issues surrounding the appointment process stem not from legislative regulations, but from decades-old practices established by political parties. He argues that major parties – historically the CDU/CSU and SPD – unilaterally granted themselves so-called “rights of proposal” subsequently shared with smaller coalition partners like the FDP and Greens.
Papier contends this rigid distribution of established proposal rights is no longer tenable, stating it doesn’t reflect the current composition of Parliament or acknowledge the fragmentation of the German political landscape. Maintaining the status quo, he warns, risks transforming the election of Constitutional Court judges into a partisan struggle, potentially damaging the court’s reputation and authority.
He emphasizes that positions on the Federal Constitutional Court should not be considered entitlements. Papier proposes that parties relinquish these inherited proposal rights altogether. Instead, he suggests that the twelve members of the Bundestag’s electoral committee, chosen through proportional representation, engage in confidential and objective deliberations to agree on a slate of candidates. These candidates would then be presented to the plenary for a vote, avoiding the perception of pre-arranged party quotas.
Papier notes that the existing legal framework allows any member of the electoral committee to submit a candidate, provided they secure eight out of twelve votes. He believes that maintaining confidentiality within the committee could facilitate substantive discussion and shield candidates from public disparagement.