When President Obama announced the nomination of Merrick B. Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, to replace Justice Antonin Scalia on March 16, 2016, it garnered a lot of media attention. Thinking about my native Germany, I realized that I could not remember hearing or reading anything in the German press, with the exception of announcements in specialized law journals, about nominees for or appointments to Germany’s supreme federal courts. Considering that the German Federal Constitutional Court regularly decides cases which have far-reaching consequences, like a recent decision that declared the terrorism legislation partially unconstitutional, the process seems to be taking place hidden from the public eye.
Germany’s Supreme Federal Courts
Germany has one supreme court exclusively for constitutional questions, the German Federal Constitutional Court (Bundesverfassungsgericht), and five additional supreme federal courts for other areas of the law. They are the Federal Court of Justice (Bundesgerichtshof) for civil and criminal matters, the Federal Administrative Court (Bundesverwaltungsgericht), the Federal Labor Court (Bundesarbeitsgericht), the Federal Social Court (Bundesozialgericht), and the Federal Fiscal Court (Bundesfinanzhof).
Members of the Federal Constitutional Court
The Federal Constitutional Court is composed of two chambers, called senates. Each senate consists of eight justices. (Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz, BVerfGG), §2). In general, a candidate must be at least forty years of age, be eligible for election to the Bundestag, and must have stated in writing that he or she is willing to become a member of the Federal Constitutional Court. (BVerfGG, §3). Furthermore, each justice must have completed a legal education which qualifies him or her for judicial office pursuant to the German Judiciary Act (Deutsches Richtergesetz).
The German Basic Law (Grundgesetz, GG), the country’s constitution, lays out the election process of the members. According to article 94 of the German Basic Law, the Federal Constitutional Court
shall consist of federal judges and other members. Half the members of the Federal Constitutional Court shall be elected by the Bundestag (parliament) and half by the Bundesrat (representation of the German states). They may not be members of the Bundestag, of the Bundesrat, of the Federal Government, or of any of the corresponding bodies of a Land.
The Act on the Federal Constitutional Court further specifies the requirements for the selection of the members of the two senates. Three positions in each senate are reserved for judges who have previously served on a German supreme federal court for at least three years. With regard to the election process, the Federal Constitutional Court Act states that
One half of each Senate’s Justices shall be elected by the Bundestag, the other half by the
Bundesrat. Of those Justices to be selected from among the judges of the Supreme Federal Courts, one shall be elected by one of the electoral organs and two by the other; of the remaining Justices, three shall be elected by one organ and two by the other.
Voting Process for Justices of the Federal Constitutional Court
The justices who are chosen by the Bundestag (parliament) are elected without prior debate by secret ballot upon a proposal of an electoral committee which is formed specifically for this purpose. The electoral committee is composed of twelve members of the Bundestag who are chosen from a list of candidates proposed by the parliamentary groups. To be elected, a justice must obtain a two thirds majority of the votes cast and at least a majority among the members of the Bundestag. (BVerfGG, §6)
Not only are the votes cast by secret ballot, but the members of the electoral committee are sworn to confidentiality. They are not allowed to reveal the candidates’ personal circumstances, which become known to them as a result of their work in the committee, or the committee’s discussions on this issue and the casting of votes. (BVerfGG, §6, para. 4).
The justices who are chosen by the Bundesrat (representation of the German states) are also elected by a two-thirds majority. Unlike the Bundestag, the Bundesrat does not form an electoral committee. (BVerfGG, § 7).
Once a justice is elected, he or she will be appointed by the Federal President. (BVerfGG, §10). The appointment is for a term of twelve years. (BVerfGG, §4, para.1). After the appointment to the Federal Constitutional Court, no other outside employment is allowed. (BVerfGG, §3, para.4). Interestingly enough, an exception is made for teaching as a law professor. It therefore comes as no surprise that eight out of the sixteen justices were law professors before their appointment to the court.
Selection of Judges at the Other Federal Supreme Courts
The judges at the other federal supreme courts are selected by the Judges Election Committee. The Judges Election Committee is convened by the Federal Minister of Justice. The committee is composed of a total of thirty-two members and consists of the ministers of justice of the sixteen German states and sixteen members selected by the Bundestag. (Basic Law, art. 95, para. 2).
The members must maintain confidentiality. (Judges Selection Act, §6, para. 2). The proceedings are not public and votes are cast in a secret ballot. Whoever receives a majority of the votes is elected and subsequently appointed by the federal president. The position is a lifetime appointment.
Lawsuits Challenging the Selection
The only time that the election of judges to the federal supreme courts makes the news is when the candidates who were not selected challenge the choice of the Judges Election Committee in court. The number of “competitor lawsuits” (Konkurrentenklage) has risen exponentially in the last years. The decisions of the Judges Election Committee have been challenged only six times total, but three out of the six challenges took place in 2014.
One lawsuit which challenged the selection for a new president of the German Federal Social Court started in 2013 and was decided in favor of the plaintiff by the Federal Constitutional Court in November 2015. Similar lawsuits were submitted against the selection for president of the Federal Court of Justice and the Federal Fiscal Court.
A lawsuit means that the appointment is on hold until the judicial review has been completed. It can take years for the lawsuits to make their way through the court system. The position remains vacant until that time. The Federal Ministry of Justice is therefore looking into establishing a special chamber at the Federal Administrative Court which will deal exclusively with competitor lawsuits in order to shorten the duration of the litigation as well as to establish uniform standards for the evaluation of judges’ credentials.
Despite the doctrine of the separation of powers, it remains that the appointment of justices,notably justices of a supreme court, is in itself a political act.