I’ve recently come across British news reporting that Germany is seeing a Trumpification of its judiciary.
Spoiler alert: we are not. Still, it should never have come to the current mess.
Here’s what happened: a couple of constitutional court judges have reached the end of their tenure. On the list of successors was a Social Democrat nominee, a renowned Potsdam law professor called Frauke Brosius-Gersdorf. The parliamentary committee in charge green-lighted her.
But just before the plenary vote, it emerged there were so many dissenting voices in the CDU/CSU that the two-thirds majority was at risk.
After dodgy plagiarism accusations and a smear campaign fuelled by the far right, the vote was pulled. Now, there’s a standoff: the CDU can’t guarantee a majority, and the SPD refuses to nominate someone else.
For the record, this is not the first time a nominee has been rejected. The most recent case was in February, when the Greens vetoed a CDU-nominated high court judge with a restrictive view on asylum. Public outrage? Didn’t happen. Never has. Because normally, this is a consensual process.
The quota for the Bundesverfassungsgericht is 3:3:1:1 – three judges nominated by CDU/CSU, three by the SPD, one Green, and one from the FDP (if they don’t make it back into parliament, that may change).
If you’re playing the blame game: this one’s on the CDU. The whip misjudged the pushback in his own ranks, failed to stop it, and still let things proceed until it was too late to cancel the vote without publicly damaging the SPD candidate.
That damage is done. A respected academic has been branded ultra-left, dangerous – even a child killer, all thanks to her legal interpretation of Germany’s abortion laws.
These laws are, to quote Goethe’s Dr Faustus, “des Pudels Kern” – the poodle’s core, the crux of the matter.
Back in 1995, legislation was amended to allow for abortions within the first 12 weeks if the woman undergoes mandatory counselling and then waits three days. Later, it is only permitted for medical or serious personal reasons.
The reform was part of the reunification process, as West German restrictions would not have been accepted by East Germans.
Even now, those most invested in the issue – churches and feminists – still do not embrace the framework. But they’ve grudgingly accepted it. In other words, it’s a compromise – the kind the US never managed to pull off.
Germany’s solution is quirky. Abortion is technically illegal, but not punishable under the conditions mentioned. Legally odd, this was seen as the only way to balance a woman’s right to choose with the unborn’s human dignity.
Menschenwürde, as it’s called, sits in the first sentence of Article 1 of the German constitution, just in case you wonder how important it is to postwar Germany: legally sacrosanct. This isn’t just down to Christian values and human decency. It’s also a response to Nazi-era forced sterilisation. So the story’s more complicated than the latest TikTok reel.
Suggested Reading
The ex-Nazis who got away with their past
Last year, Brosius-Gersdorf was on a committee set up by the then left wing government to propose abortion law reforms. Her position? “The assumption that human dignity applies wherever human life exists is a biologistic-naturalistic fallacy.” She went on: “There is much to suggest that human dignity only applies from birth.”
She’s not alone in this. And no, she doesn’t want unlimited, unregulated access to abortion – but to make it legal, which would mean health insurance could cover it (at present, only welfare recipients are exempt).
The Constitutional Court has consistently held the opposite view: “Where human life exists, it has human dignity,” including unborn life. So if you are a conservative MP who wants the hard-sought compromise to remain forever untouched, not voting for this SPD-candidate makes perfect sense.
Brosius-Gersdorf has said she’d step aside if the row over her appointment threatened to damage the court’s reputation or to spark a coalition crisis. But her supporters argue that renouncing would cause the most damage – she would be giving in to a far right witch hunt.
The most likely outcome is that the SPD drops her and makes it very expensive for the CDU. That political bargain will hopefully teach everyone not to let these shenanigans happen again.
On the plus side, the Bundesverfassungsgericht – arguably the most trusted institution in Germany – remains untouched by the chaos. And is definitely still not Trumpified.
