Judges must be "no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigour," said the French enlightenment political philosopher Baron de Montesquieu (1689-1755). The initiator of the separation of powers assigned the third branch of government, the judiciary, a clearly defined role of servitude.

More than 250 years later, the reality is far different. Even in Germany, respected around the world for its adherence to the rule of law, the judiciary's independence has come under scrutiny.

Germany's more than 20,000 judges are not "bound by directives." Germany's federal states — normally their respective justice ministries — choose judges. Federal judges are selected on a "best choice" principle, as set forth by the Constitution. 

A judicial selection committee exists for Germany's top five federal courts (the Federal Court of Justice, Federal Social Court, Federal Administrative Court, Federal Fiscal Court and Federal Labor Court) but not the Federal Constitutional Court — the highest in the land.

Constitutional Court Justices' appointments

Federal judges are selected on a "best choice" principle, as set forth by Germany's Basic Law, the country's Constitution.

Candidates for the Federal Constitutional Court must be at least 40 years old, have full voting rights, must have served at least three years at one of the highest courts in Germany. They must not be members of parliament or the federal government. 

The 16 Federal Constitutional Court Justices are elected for twelve-year terms. They are also required to leave the office at the end of the month in which they turn 68. They continue to perform their duties until a successor has been elected.

They have autonomy in the court's internal procedures, such as deciding in which order they process cases.

How the Constitutional Court Justices are elected

Half of the Justices are elected by the Lower House of Parliament, Bundestag, the other half by the Bundesrat, the chamber representing the 16 federal states. A two-thirds majority is required in the respective house of parliament which take turns to elect the justices.

In 2025, the Bundestag is currently responsible for filling three vacancies.

In a first step, the parliamentary committee for the selection of judges (Wahlausschuss) selects candidates with a two-thirds majority. The Election Committee consists of 12 parliamentarians, selected by the parliamentary groups and it meets behind closed doors.

There are no public hearings like in the US. A candidate needs a two-thirds majority of the votes both in the electoral committee and the respective chamber of parliament in a secret ballot.

The center-left Social Democrats (SPD) and the bloc of center-right Christian Democratic Union and Christian Social Union (CDU/CSU) traditionally alternate with the right to propose candidates. The opposition parties have little chance to field candidates who can secure a two-thirds majority.  So they have voiced criticism calling into question the selection committee's objectivity in its decision-making.

Once elected, the President formally appoints the justices, and they take an oath of office.

The tasks of the Federal Constitutional Court

The judiciary is seen as the arbiter of the executive and legislative branches of Germany's political system.

The Federal Constitutional Court works within an EU and international law framework. It has two sub-courts (Senat) with eight members each. The first deals largely with civil rights issues and reviews specific statutes, which arise from lawsuits; the second deals largely with issues of disagreement between the federal government and federal states, the voting law, and issues such as the outlawing of political parties.

Everyone can file a constitutional complaint, although in the end, only a very small percentage make it through the system. 

This article was first published in 2017, and later amended repeatedly to reflect later developments. DW's Volker Wagener was the initial author.

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