The Rule of the Courts

Making Constitutional Courts Resilient: The German Example

embedded in an ordinary law only (§ 4 (4)) LFCCt), which a simple majority in Parliament can amend, is puzzling. ° Justices do not have to fret, though, that the continuation rule which thanks to Art. 93 (2) 3 BL is now constitutional standard, will keep them in their functions forever, in the manner of U.S. Supreme Court Justices. Of the Justices of the Constitutional Court, half shall be elected by the Bundestag , the Federal Parliament, and half by the Bundesrat , the second (quasi-)chamber composed of representatives of the federal States, the Länder . This was formerly enshrined in Art. 94 (1) 2 BL and can now be found in Art. 93 (2) 2 BL. However, the constitutional amendment opens a legislative option to substitute the Bundestag for the Bundesrat , or vice versa, if the organ on whom the election is incumbent fails to elect a new Justice, within a time limit to be specified, at the end of the predecessor’s term (or his or her premature “departure”). This situation is not beyond all imagination, less so where an election is incumbent on the Bundesrat (because it will unlikely be dominated by extremist governments anytime soon) but where it is the Bundestag ’s turn to elect a Justice. In each case, this requires a majority, albeit not of the members of the organ but of the votes cast. This prerequisite (§ 7 LFCCt) was not constitutionalised, on grounds that shall be discussed further below. The legislator made use of its constitutional empowerment to provide for an “ersatz election mechanism” 16 by adopting § 7a (4) LFCCt at parallel to the constitutional amendment. This legislative provision stipulates that the Federal Constitutional Court itself shall set up a list of possible eligible candidates when two months have expired since the predecessor’s term’s official end (§ 7a (1-3) LFCCt). If within another three months, no successor has been elected, the right

16 “Ersatzwahlmechanismus“: Paulus, in: von Münch/Kunig, Grundgesetz-Kommentar, 8 th ed. 2025, Art. 93, at paras. 63 ff.

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