CDU Floats New Rules to Instate Far-Left Constitutional Court Candidate

The leadership of the German CDU-CSU still wants to uphold its promise by electing the far-left candidate of its socialist coalition partner SPD to the Constitutional Court, despite the opposition of a third of its members and the giant backlash coming from its voters. 

Some even pitched changing electoral rules to make sure ‘Christian’ Democrats can push through the radically pro-choice lawyer, whose ultimate goal is finding a way to ban the right-wing populist AfD, the second-largest party in the Bundestag.

SPD candidate Frauke Brosius-Gersdorf, a Hamburg law professor with no experience as a judge, has angered core CDU voters and civil and religious organizations by advocating for stripping fetuses of their constitutionally guaranteed right to ‘human dignity’ and therefore legalizing abortion up to birth, leading to thousands of people demanding that their representatives block her election. 

Nearly a third of CDU MPs took note and rebelled against the party line, forcing the Bundestag to postpone the confirmation vote until the governing parties are sure that they have the two-thirds majority needed to elect the judges.

The most likely solution in this case is that Brosius-Gersdorf will be replaced by the SPD’s second candidate, Ann-Katrin Kaufhold. She’s just as progressive as the party’s first pick and has no experience working as a judge either—and also supports banning the AfD—but she’s not been at the center of as much public attention, so the rogue CDU MPs could be spared from a similar backlash.

However, as the SPD is not willing to give up on Brosius-Gersdorf, the CDU even brought up changing the rules of how Constitutional Court judges are elected, which some warn would seriously undermine the integrity of the court. 

One solution, advocated for by CSU leader Markus Söder, is to scrap the two-thirds requirement in favor of a simple majority in the Bundestag. If that had been the case during the initial vote, Brosius-Gersdorf would already be sitting on the Constitutional Court, elected by SPD, Greens, Left, and the obedient faction of the CDU. 

Of course, this would also sacrifice the principle of checks and balances and of ‘reasonable neutrality’—making the country’s top court little more than just the extended arm of the government—but Söder and others endorsing this solution would have no problem with that.

Another proposal, pitched by CDU lawmaker Carsten Körber, was to scrap the confirmation vote in plenary altogether, leaving only the Bundestag’s electoral committee to directly elect Constitutional Court judges. That way, the whole issue would be decided by just a dozen MPs, and—considering that the committee, including its CDU members, has had no issue with Brosius-Gersdorf’s candidacy—it would be much easier to push through controversial candidates.

Even if neither of these reforms seems viable in the short term, this could easily be the direction Germany will take in the future. Not only because the CDU leadership wants to avoid another similar scandal, but also because even most of those MPs who were forced to block the radical leftist candidate would likely endorse the decision—with the matter taken out of their hands relieving them of having to face their own conscience and electorate.

And let’s not forget the ultimate goal, which both SPD and CDU aspire to behind the scenes: eliminating the long-term threat represented by AfD, best done before the next election brings a national conservative victory.

Both Brosius-Gersdorf and Kaufhold have spoken out in favour of exploring the possibility of a federal ban on the largest opposition party before, so they would certainly work toward finding ways to do that once elected. But even if a full ban turns out to be impossible, there could be other ways to put pressure on the Right.

For instance, CDU’s Tehran-born Justice Senator for Berlin, Felor Badenberg, recently advocated for banning AfD’s state-level party associations, especially in its Eastern German strongholds, making it all but impossible for the party to properly function and organize. Additionally, the senator said, the state should consider banning individual AfD politicians from standing for election—as in the case of Marine Le Pen in France—to send a “clear message.”

According to Badenberg, the ‘problem’ with the idea of an all-out federal ban is that AfD doesn’t give a reason for it. “It acts strategically and is mostly just below the threshold of what could be legally dangerous for the party,” she said.