Germany just had an American Debacle
Electing Supreme Court Justices with a 2/3 majority is a formality in Germany. Last week, the CDU blocked the nomination of a judge for the first time. Is a culture war ahead?
Modern Germany prides itself on having a robust Democracy. We often look at the United States and its eroding system of checks and balances and are glad that our system still seems to work better. One of the areas where that is usually very obvious is the Supreme Court.
In the US, Supreme Court nominations have become increasingly partisan as only a simple majority is needed. Additionally, President Trump has pushed nominees through the Senate despite considerable opposition. These highly controversial appointments by Mr. Trump, along with the at times scandalous hearings and revelations, paired with strong opposition from the Democrats, have shaken US trust in the Supreme Court. Things only worsened after these conservative justices issued polarizing landmark rulings, like granting Trump immunity or overruling Roe v. Wade, that were never unanimous and ignited sharp dissents. The impression persists that the party in power of the presidency and the Senate can use the Supreme Court to push a certain agenda. The age of a balanced court is long over.
Germany’s System of Stability
In Germany, we have never had such problems. Judges need a broad, 2/3 majority to be elected to the Supreme Court, which means that parties from center-right to center-left had to select suitable candidates who could be supported by conservative CDU members as well as very progressive Green Party members or Social Democrats. Until last week, this process had worked quite well. While the far-right AFD has always sown distrust in our Supreme Court, Germans generally put a lot of trust in the institution. (80% of Germans said they trust the Supreme Court “a lot” in a 2021 poll)
That can likely be attributed to the fact that the nomination process has always been handled professionally and without large media spectacles or scandals. Last week, this changed.
At the center of this tragedy is the newly formed coalition of the center-right CDU and the center-left SPD (Social Democrats). This coalition has governed Germany for 44 years since the country's foundation in 1949. Over the last decades, it has been a coalition that has been criticized for failing to modernize Germany. It has also always been a coalition that brought a lot of responsibility and stability. Part of this was the nomination of Supreme Court Justices. Both parties would bring forward candidates of high qualification, and after an internal process, the parties would support each other’s candidates.
Last week, for the first time in modern history, they failed. Why? Because part of the CDU was in open revolt against the SPD-nominee Brosius-Gersdorf.
CDU Blocks Judge and Risks Erosion of Public Trust
There is little doubt that Brosius-Gersdorf, a scholar and judge with great experience, is qualified to become a Supreme Court Justice. It was mostly her stance on abortion policy that led some CDU members to oppose her. Brosius-Gersdorf has stated that she approves of legalizing abortion in the first trimester. Abortions in the first trimester are still illegal in Germany, BUT do not get prosecuted, so they kind of are legal (in my very much not qualified legal opinion).
Nevertheless, her positions sparked criticism from conservative church officials and some CDU members. Then, the far-right jumped in. It was clear that the far-right, extremist AFD would not support the nominee, but their votes weren’t needed. Still, the Tagesschau reported that there is evidence for a well-funded, far-right social media campaign to generate public outrage by posting over 40.000 posts, many of them containing false and defaming content.
Part of this was a claim that Brosius-Gersdorf plagiarized parts of her dissertation (a third-party review later proved these claims to be false). So when the vote was scheduled to take place, expectations were high. Would the CDU drive a rift in the newly formed coalition and block the judge? With the center-left Green Party Die Grünen and the leftist party Die Linke pledging support for the nomination, no more than 57 CDU members could have voted “no,” or the vote would have failed. According to news reports, 50 to 60 members said they would have voted “no”.
In the end, the CDU decided to postpone the vote until further notice. While they avoided the disaster of a failed vote, there was still a scandal. A German Supreme Court nomination, hardly something so interesting that it becomes a big news story, had likely failed (at least for now).
Analysts worry that this failure of the centrist “democratic” parties of Germany (which include the Greens as well as, for many, Die Linke) to find a consensus could only embolden extremists. The far-right AFD is counting on the impression that Germany’s traditional parties are failing to govern the country, positioning themselves as an alternative.
Could this have been avoided? - The Culture War
Yes. Brosius-Gersdorf is a qualified judge. After the failed vote, colleagues, experts, and even catholic bishops hurried to her side, calling for lawmakers to vote for her approval. Brosius-Gersdorf even gave a televised talk-show interview, something I can not recall any other Supreme Court nominee ever having to do. The interview left a strong impression as she explained her positions with nuance and great attention to the law.
So far, the CDU hasn’t moved and has not yet responded to media requests following the interview. The party of Chancellor Friedrich Merz is fighting an internal battle. While some want to bear responsibility and elect Brosius-Gersdorf to continue a tradition of stability, others seem determined to continue what they already started: a culture war.
Even though economic and international security issues continue to be Germany’s most pressing subjects, and also the focus of Chancellor Merz, some in the CDU are putting social issues in the center of the news cycle. They debate the positions of Brosius-Gersdorf regarding abortion or COVID-19 vaccine mandates. Sounds familiar? It should.
Donald Trump’s culture war against “wokeness”, transgender athletes, or COVID-19 vaccines has polarized the US. Now, some fear that the same could happen in Germany as some CDU members are openly attacking the judge on such, often factually wrong, grounds. The AFD is certainly rejoicing. No wonder, after all, “sparking a culture war” is a centerpiece of their strategy, according to a leaked paper.
Brosius-Gersdorf’s positions are rooted in a study of the law (She has even offered to meet with CDU members to discuss concerns). The argument that her positions are not in line with the majority opinions of the German electorate is also false: Around 80% of Germans want an end to abortion bans.
Now we have to wait and see if Chancellor Merz can get a hold of his party and repair the damage that has been done. It won’t be easy for him as some conservatives continue to wage open war against Brosius-Gersdorf.
The impressive 80% trust level that Germans had for the Supreme Court in 2021 could likely erode after this incident. In the end, there’s only one party that benefits from that: the AFD.