The Rule of the Courts

Jörn Axel Kämmerer

of election is passed to the respective other organ. 17 This mechanism ensures a transfer of functions to a successor (even though this may take as long as half a year), and the worthiness and high qualification of future Justices. However, a questionable feature is the right of the Court to propose candidates, because it involves a risk of “judicial self-perpetuation”.

IV. Appraisal of the Amendments– Is the Constitutional Court Safe Now? The proof is always in the pudding. The challenge of the new provisions lies still ahead. The country was given a foretaste when in the summer of 2025 a controversy broke out among the parties of the ruling coalition (Christian Democrats and Social Democrats) on a candidate for the Constitutional Court and her political positions. It was clear that, since any agreement or alliance with the AfD was believed unthinkable, the two thirds majority required for an election could only be achieved where both the Green Party and Die Linke endorsed (or at least not opposed) a candidate. The two-thirds threshold is ambiguous: On the one hand, as has been shown, the political fragmentation and the dwindling of centrist forces make what formerly posed no obstacle increasingly difficult to reach. On the other hand, it is useful as a bulwark against extremists invading the Court. On the one hand, a broad political consensus being required to elect a Justice benefits the political legitimacy of the Court, while on the other hand this can also make the governing majority reliant on votes of smaller opposition parties whose consent they desperately need. At the same time, the underrepresentation of everything that is right of the political centre (encompassing, all in all, more than 54 % of the votes cast in the 2025 elections, but of which only the moderately conservatives Christian Democrats, with 33 % of all seats in Parliament, partake in staffing the Court) could result in judges’ benches with a more pronounced centre-left

17 For further comments on this “unblocking” strategy, see Gabriele Britz, Die Grundge setzänderung zur Sicherung des BVerfG , in: NJW 2025, 609, at pp. 612 f.

49