In Germany, the judges on Federal Constitutional Court are elected by the federal parliament with two-thirds majority vote.

Throughout its history, the parliament was able to elect new judges without much controversy. Every time a judge's term is up, the parliament elects another one with two-thirds majority. Business as usual.

But you could easily see how this might end up in deadlock. What if parties never reach consensus on who to nominate and the seat remains vacant after the judge's term is up?

How does Germany consistently and efficiently elect judges onto Federal Constitutional Court in spite of the two-thirds majority threshold?

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    Well, they've only moved to the new system in 2017, so it may be a bit premature to declare that no problem will arise from the 2/3-maj. secret vote. Oct 13, 2021 at 7:27
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    Asking from a US perspective? There are country tags to indicate the country for which the question is being asked, however, sometimes it might be beneficial for the OP to state from which perspective the question originates. Maybe that's something for meta.politics?
    – Dohn Joe
    Oct 14, 2021 at 7:25
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    Note that for most of US history (if this is the context of this question), a two-third majority vote was also required, and this led to the nomination of personalities highly recognised across the board (Ginsburg, Kennedy, Scalia).
    – Jerome
    Oct 14, 2021 at 14:10

1 Answer 1


TLDR: Without political polarization and passionate public disagreements on court rulings, the German People do not really care about how judges are appointed, which enables the political parties to make simple deals.

The appointment procedure differs between the two legislative bodies:
Half of the members of the Federal Constitutional Court are elected by the Bundesrat, which is the legislative body representing the states, the other half by the Bundestag, the federal legislative body.

The members of the Bundesrat are not elected but appointed by the state governments. Since CDU and SPD, historically the biggest parties in Germany, for the longest time held the necessary 2/3 majority together, they made a simple deal: They simply take turns in appointing judges.
In the year 2016 however the Green Party gained enough members in the Bundesrat to block candidates, so they had to be included the deal. The current rotation of appointments is: CDU - SPD - CDU - SPD - Green.

The Bundestag in turn forms a committee which negotiates a candidate that a necessary majority of parties can agree upon. The exact details of the negotiations within this committee aren't known and the final vote in the Bundestag is performed with secret ballots, which is why the whole appointment procedure is often criticized as intransparent.
It wouldn't be terribly surprising if there were secret dealings in a similar fashion to what happens in the Bundesrat, where a 2/3 party majority simply takes turns on appointing uncontroversial candidates.

The major reason for why the appointment of judges is usually a quiet and uncontroversial event, although there are certainly enough things that can be critized about the appointment procedures, is that there is no political split and polarization in Germany comparable to for example as in the US, where you have to deal with two judicial philosophies and two political parties that are vehemently at odds with each other.
While there have been controversial decisions by the Federal Constitutional Court, overall it is held in high esteem by the German People and is widely seen as functioning well.
If there were deep public disagreements about fundamental court rulings like Roe vs Wade in the US or polarization comparable to Democrats vs Republicans the appointment procedures would probably very quickly come under public scrutiny as well.

Since I already used the US as an example it should also be noted that multi-party-systems usually have far better relationships and cooperation between the respective parties than a two-party-system, since the parties have to enter coalitions to form a government, which makes appointments that require cross-party-cooperation significantly easier since the parties are used to working and cooperating with each other.

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    "multi-party-systems usually have far better relationships and cooperation between the respective parties" a multi-party system also has more room for nuance. If there are 5 or 6 parties, you can agree with some of them on some issues, without immediate danger of losing your "voter profile" or being brandished a traitor to the cause.
    – xLeitix
    Oct 13, 2021 at 12:53
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    Even in the US the nomination process for well qualified judges wasn't treated as a normal political matter, that's a very recent development. Even given contentious issues like RvW it was more a question of competence-- judges that would be considered "highly partisan" today like Ruth Ginsburg and Scalia both sailed through with 95+% of votes just ~30 years ago. Never would happen today. Failed nominations occurred, but they failed due to lack of competence or particularly extreme opinions and failed in a bipartisan manner (Harriet Miers was objected to on qualifications by both parties)
    – eps
    Oct 13, 2021 at 15:22
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    A separate reason why the German high court isn't as controversial as in the US is because the German constitution is, by and large, much better written. It actually addresses things directly without the oblique and diffuse language of the US Constitution. (That may not be that surprising: The US Constitution had very little precedent, and the German constitution was written 160 years later.) As a consequence, the decisions by the German high court are often about more technical things because the big questions are clear and uncontroversial in the German constitution. Oct 13, 2021 at 20:23
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    @WolfgangBangerth: Indeed, there was significant input from the Allied powers, including US Constitutional Scholars. In a sense, the German Constitution is the culmination of lessons learned from the failed Weimar Constitution as well as the failed 1848 Revolution, the US Constitution and its Amendments, the UK, and France, with added safeguards based on the experiences of the Third Reich. It's essentially a Best-Of album of German covers of the greatest international political systems :-D Oct 13, 2021 at 22:52
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    I also think it helps the judges are seen as, and expected to be, non-partisan. They are to judge whether something is in accordance with the constitution, period.
    – kutschkem
    Oct 14, 2021 at 6:38

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