Blog of the International Journal of Constitutional Law

New President at the FCC & Some Thoughts on the Appointment Process

Last week, Hans-Jürgen Papier retired from his position as President of the Federal Constitutional Court (FCC) and chief judge of the First Senate upon expiration of his 12 year term on the court. His successor as President is the former Vice-President of the Court Andreas Voßkuhle (FCC press release in German here). Voßkuhle concurrently serves as chief judge of the Second Senate, a position he has held since 2007 when he joined the court. At 46, Voßkuhle is the FCC’s youngest President. He is a professor of public and administrative law at the University of Freiburg.

Ferdinand Kirchhof, who has been on the court since 2007, was elevated to chief judge of the First Senate and Vice-President of the FCC. He is a professor of public law and tax law at the University of Tübingen. (FCC trivia: Ferdinand Kirchhof’s brother Paul served on the court from 1987-1999.) The vacancy on the First Senate created by Papier’s retirement was filled with Andreas Paulus, professor of public law and international public and EU law, at the University of Göttingen.

FCC judges are elected for a non-renewable term of 12 years; the mandatory retirement age is 68. The only employment permissible in conjunction with a judgeship on the FCC is as a law professor at a German university. Three of the judges of each of the two senates must be elected from among the judges of the federal courts – Article 94(1)1 of the Basic Law requires that it be at least two; §2(3) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) sets the number at three. Half of the judges are elected by the federal legislature (Bundestag) and half by the state chamber (Bundesrat), each with a two-thirds majority. The Bundesrat elects its share directly, the Bundestag through a twelve-member committee on which members are represented proportional to their strength in the federal legislature (some scholars maintain that the election by committee is unconstitutional, violating the text of Article 94(1)2 Basic Law which demands election by the Bundestag).

Although the idea behind the two-thirds requirements presumably was to encourage multi party agreement on an individual candidate, the political reality is that judgeships are divided up between the two large political camps. By alternating appointments between the two camps, the membership of the FCC remains relatively balanced. Sometimes, a party does refuse to go along with the other’s nominee (as reported here regarding the SPD’s first choice before Voßkuhle, Horst Dreier). Even though its judges are appointed in a process of political compromise outside the public’s view, the German public overall continues to place great trust in the FCC as an institution. But a wider public debate over the nominees is virtually non-existent, mainstream press coverage on nominees is rare, and the FCC judges throughout their tenure remain largely unknown outside of the legal community.


2 responses to “New President at the FCC & Some Thoughts on the Appointment Process”

  1. Tom Ginsburg Avatar

    Its generally hypothesized that supermajority requirements will lead to more moderate candidates. I wonder if there is any work comparing ideological variance on various courts around the world. In the German case, was there a time when the party system was less stable? if so that might have featured less predictable appointments.

  2. Claudia Haupt Avatar

    On that point, it actually may be interesting to see what will happen in the future as the Christian Democrats and Social Democrats, clearly the two dominant parties in Germany in the past, have been significantly losing strength vis a vis the smaller parties in recent years.

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