The process for selecting judges for Germany’s Federal Constitutional Court (Bundesverfassungsgericht) is facing scrutiny following a recent call for reform. Ulrich Karpenstein, Vice President of the German Bar Association (Deutscher Anwaltverein – DAV), has voiced concerns regarding a proposal put forward by Jan van Aken, leader of the Left Party (Die Linke). Van Aken’s suggestion involves granting the Left Party a nominative right to propose candidates for the court.
Karpenstein emphasized that the existing framework, enshrined in the Basic Law (Grundgesetz) and the law governing the Federal Constitutional Court, is specifically designed to ensure judicial independence and impartiality. The procedure mandates a broad consensus between the Bundestag (Federal Parliament) and the Bundesrat (Federal Council) and aims to avoid public disputes over alleged veto or nominative rights. He cautioned against politicizing the appointment process, deeming the constitutional court’s integrity too important to be drawn into partisan conflict or short-term political maneuvering.
The current selection process assigns half of the court’s 16 judges to be chosen by the Bundestag and the other half by the Bundesrat, both requiring a two-thirds majority for election. The composition of the new Bundestag means that the governing coalition, currently comprised of the Union parties, the Social Democrats (SPD) and the Greens, does not consistently possess this two-thirds majority, making their reliance on support from parties like the Left – and historically also the Alternative for Germany (AfD) – increasingly necessary. Traditionally, the right to propose candidates has been determined by the relative strength of parliamentary factions, a system which has previously excluded the Left and AfD from direct involvement in the nomination process.