Bavaria's Constitutional Court: CSU and Free Voters want to elect AfD candidates

DThe Bavarian state parliament will probably approve a list of 15 candidates for the Bavarian Constitutional Court this Wednesday with the votes of the majority factions of the CSU and Free Voters (FW), including two nominees from the AfD faction. This concerns the “non-professional judge members” who, according to the court, primarily participate in the “mixed panel”, consisting of the president, three professional judges and five other members. The “others”, including those nominated by the AfD, take part in the oral hearing, consultation and voting “with the same rights and obligations as the professional judge members”.

The state parliamentary groups, apart from the AfD, were faced with a dilemma. Should they vote on the candidates as a whole, as has been the case until now – or on each one individually, and then, in a secret ballot, let the AfD candidates fail? The President of the Constitutional Court, Hans-Joachim Heßler, had pointed out to the state parliament that it would be “associated with serious constitutional uncertainties” if seats on the Court remained vacant. This is also a reason for the CSU and Free Voters to wave through the list as a whole – despite existing concerns.

The parliamentary managing director of the CSU parliamentary group, Michael Hofmann, told the FAZ that in December 2023, the state parliament's council of elders, with the consent of the Green parliamentary group, decided to vote on the parliamentary groups' proposals for judges at the Constitutional Court “as a block”. This procedure had also been used in previous legislative periods. “We are thereby ensuring that the Bavarian Constitutional Court is properly staffed and, in particular, that the right to a statutory judge is preserved.” The election decision itself is the responsibility of each individual parliamentary group member. “It is clear to everyone: If the proposals were rejected as a whole, the Bavarian state parliament would not be able to fulfill its legal task.”

Greens want to vote against the list

Florian Streibl, the parliamentary group leader of the Free Voters, said: The most important criterion for the FW parliamentary group is “the presence of relevant qualifications”. The purpose of the election is “so that the constitutional court’s judicial bodies can be properly filled and the court can therefore remain capable of acting”. The prerequisite for this is an occupation in accordance with the balance of power in the state parliament.

The Greens want to vote against the list – and therefore also against their own candidates. Five years ago they had waved through the two AfD candidates who have now been nominated again: Wolfram Schubert, a former senior public prosecutor, and the lawyer Rüdiger Imgart. In 2020, during the Corona protests in Berlin, he mingled with those demonstrators who wanted to storm the Reichstag. Afterwards he told the “Süddeutsche Zeitung” that he had just wanted to get a picture of the demo and had not “agreed to any obscure demands”.

Jürgen Mistol, Parliamentary Managing Director of the Green Party, told the FAZ with regard to the AfD candidates: “We now know them.” His group wants to present a draft law so that the Constitutional Court can work in a legally secure manner in the future, even if there are incomplete members. SPD parliamentary group leader Florian von Brunn, who recommended that his group vote no, is also calling for a new legal basis “so that enemies of the constitution cannot become constitutional judges”.