Resumen de Party, pope, and politics?: The election of German Constitutional Court Justices in comparative perspective
The election of Constitutional Court Justices in Germany is guided by an unusual and complex normative system in which rules with the lowest degree of legal normativity often play the most important practical role. Indeed, the relevant constitutional norms are close to misguiding. Statutory norms are closer to real life, but still overshadowed by a longstanding, informal agreement between the major political parties on a system of party affiliation. The actual determination of individual candidates is widely influenced by a very limited number of high-ranking party members without any official calling (Section 2). Reform proposals for this much criticized system mostly concern a possible public hearing modeled on the US example, a change in the bodies charged with the election, and the voting procedure (Section 3). A closer analysis of the critique reveals, however, that it is largely unfounded. The influence of party affiliation simplifies and assures an ideological balance within the Court that is necessary for its proper neutral functioning (Section 4.1). The idea of a more transparent selection process with public hearings would most likely politicize and ideologize the selection process even more and, in the German environment, exclude a great number of good candidates from the process (Section 4.2). The delegation of the election to a parliamentary committee, to the exclusion of parliament itself, is a sound policy decision, albeit an unconstitutional one since it divests members of parliament of their right to vote. However, a simple parliamentary yea or nay vote at the end of an otherwise unchanged procedure could easily remedy this problem (Section 4.3). The entire evaluation of the election procedure hinges on the qualification of constitutional courts as more political or more legal bodies. While this article prefers the legal point of view with respect to the German Constitutional Court, such a determination can never be done in the abstract, but will differ from one constitutional court to another. The influence between empirical reality and the legal/political qualification of a given court is, however, a mutual one in which the prevailing—or changing—theoretical attitude may become a self-fulfilling prophesy (Section 5). The German system for the election of Constitutional Court Justices deserves full and continuing support.
