With gritted teeth: Union approves nomination of SPD candidate for Constitutional Court

Three judge positions at the Federal Constitutional Court are up for election. After intense debates, the Bundestag's Election Committee has agreed on two female and one male candidates. The votes of the Left Party or the AfD could now be decisive in the Bundestag.

The first hurdle in filling three judgeships at the Federal Constitutional Court has been overcome – now everything is moving toward the votes in the Bundestag on Friday. According to information from participants, the Bundestag's electoral committee has agreed to recommend two SPD candidates and one CDU/CSU candidate for the positions – including the SPD candidate Frauke Brosius-Gersdorf, who is controversial within the CDU/CSU ranks.

The final decisions on the CDU/CSU candidate, Günter Spinner, currently a judge at the Federal Labor Court, and the SPD-nominated law professors Brosius-Gersdorf and Ann-Katrin Kaufhold are scheduled to be made in the Bundestag plenary session on Friday. However, even together with the Greens, the CDU/CSU and SPD do not have the two-thirds majority required to elect constitutional judges. This means that votes from the AfD or the Left Party could be decisive.

Brosius-Gersdorf, in particular, had previously faced opposition from the ranks of the CDU/CSU. The law professor had, among other things, advocated for mandatory vaccination during the coronavirus pandemic and advocated for a reform of abortion law. CDU Bundestag member Saskia Ludwig described her on X as "unelectable." There were reportedly intense discussions about the appointment at the CDU/CSU parliamentary group meeting.

No two-thirds majority with the Greens

On Friday morning, the first vote will be on one judge, most likely the candidate nominated by the CDU/CSU. The election of the two other judges is on the agenda for the last session of the Bundestag before the summer recess around noon.

Unlike the electoral committee with its twelve regular members, the governing parties CDU/CSU and SPD may need votes from the Left Party in addition to the Greens for the plenary vote, unless they wish to be dependent on votes from the AfD. The ballot is secret. In its incompatibility resolution, the CDU/CSU has stipulated that there will be no parliamentary cooperation with either the AfD or the Left Party.

A two-thirds majority of the votes cast is required for the election in the plenary session – if all parliamentary groups were represented according to their relative strength and voted unanimously, this would require either the AfD or the Left Party. In addition, at least a majority of all 630 Bundestag members, i.e., at least 316 votes, is required.

Spahn is confident

The leadership of the CDU/CSU parliamentary group is counting on all three candidates of the CDU/CSU-SPD coalition for the Federal Constitutional Court being elected with a two-thirds majority. Parliamentary group leader Jens Spahn pointed out that with the nomination of Günter Spinner, the CDU/CSU has adopted the proposal of all current constitutional court judges. The leadership of the CDU/CSU parliamentary group, for its part, supports the two SPD proposals. "That's what we agreed on," Spahn said. The Social Democrats have assured that Brosius-Gersdorf will not become Vice President of the Constitutional Court.

The AfD parliamentary group leadership recommends its members vote for the CDU/CSU candidate. However, parliamentary group leader Alice Weidel announced that they will not support the two candidates proposed by the SPD.

The Left, however, insisted on talks with the CDU/CSU before the election. "No talks, no election, that's quite simple," said Left Party leader Jan van Aken. According to him, the Left wants to reach agreements with the CDU/CSU regarding both the election and the right to propose judicial appointments, as well as the filling of positions on the Parliamentary Control Committee and the reform of the debt brake. However, the CDU/CSU has not made contact. If the Left does not approve Spinner, but the AfD does, a constitutional judge could be elected with their votes for the first time.

The 16 judges of the Federal Constitutional Court are elected half by the Bundestag and half by the Bundesrat. Currently, three positions are vacant by the Bundestag. The CDU/CSU can propose one candidate, and the SPD can propose two.