Wednesday, July 30, 2008

Talking about the Bundesverfassungsgericht

The German Constitutional Court just overturned several German state laws banning smoking in bars. The problem wasn't that they violated a fundamental right to nicotine: According to the Court, the laws violated the professional freedom of people running small bars, as owners of large bars were permitted to designate separate smoker rooms - an option not available to small-bar owners, who argued that they would be driven out of business. The Court stated, however, that state laws prohibiting smoking in all bars would be constitutional. For now, one-room bars can declare themselves to be smoker bars, as long as they exclude patrons under 18 and don't serve food (the drinking age in Germany is 16, so this will exclude at least some drinkers - but then those limitations are never very strictly enforced). Two tidbits to the story that I find amusing: The small bar owners found some sympathy in the public debate because they include owners of so called corner bars - small bars on city corners that are a firm part of German mythology: The foundation of urban community life, the regular meeting place of friends and strangers, etc. Second, the bar owner who brought the suit runs the Pfauen (Peacock) bar in Tübingen - a place I frequented in my young and carefree days.

Sunday, July 27, 2008

I'm *shocked*: Politics even in German constitutional court appointments

I meant to summarize this episode for some time now, because I think it's very interesting from an American perspective: Earlier this year, the German Bundesrat (the legislative chamber representing the German states) essentially rejected a nominee to the German Constitutional Court (the Bundesverfassungsgericht, abbreviated BVG; the candidate, Horst Dreier, withdrew once it became clear he would not be confirmed). This was not the first time a candidate for the const. court was rejected, but the remarkable thing was the public debate on the candidate's legal philosophy, which turned into a debate on public policy, the judicial appointment process, and to what extent the latter should be more public. One interesting element in the debate was the use of the US (federal) judicial appointment process as an example that should not be followed (Jutta Limbach, a former chief justice of the constitutional court, for example, criticized that in the US process nominees would have to commit themselves to particular decisions - a point that is not really justified: SCOTUS nominees actually use the argument that they may not discuss possible future cases to evade questions about their policy positions). Another interesting thing were the two policy issues that led to the rejection of Dreier's nomination: torture and stem-cell research. Sounds familiar, eh?

Since Germany is a code law country, judicial appointments generally follow a civil-service system and are less politicized than US appointments: Future judges have to get a law degree (something not required for all judicial positions in the US - particularly in lower state courts), complete two years of internships, and pass additional state exams after those internships; only the best examinees are then chosen by the Ministry of Justice (for the federal courts; at the state levels, they're usually chosen by the respective state ministries). The judicial career then proceeds like a civil service career, with promotions controlled by the ministries and more senior judges. (A good, quick summary of European judicial appointment processes can be found in Mary Volcansek's 2007 Fordham Urban Law Journal article [available here]. A more detailed discussion is available in Peter Russell and David O'Brien's 2001 collection, Judicial Independence in the Age of Democracy.)

Appointments to the German Federal Constitutional Court are different. The BVG is the highest court for constitutional questions (there are other highest courts for statutory and administrative law questions), and as a result it often deals with highly politicized questions; appointments to this court are political, which in Germany means party-based. Half of the justices are elected by the lower chamber of the German legislature (the Bundestag), and half are elected by the upper chamber, the Bundesrat. In the Bundestag, justices are elected by a committee, by a two-thirds majority. In the Bundesrat, justices are elected directly, also by two-thirds majority, after they have been nominated by a commission.

Practically, nominees are chosen through negotiations between the two largest parties, the Social Democrats (on the left) and the Christian Democrats (on the right); in this process, each party gets to nominate half the justices, but they still have to get approval from the other party. Dreier, a law professor from the University of Würzburg and a member of the Social Democratic Party, was chosen for a Social Democratic seat and hence was selected by a group of leading Social Democrats, which included the Minister of Justice, Brigitte Zypries, the head of the Social Democratic caucus in the lower chamber, and a Social Democratic member of the upper chamber of the legislature. There was some coordination with the Bavarian prime minister - a member of the Christian Social Union (European politics can be pretty complicated: The Bavarian version of the conservative party is called the Christian Social Union, but it caucuses with the Christian Democrats) - but this seem to have been, remarkably, by a text message, to which the Bavarian PM did not respond. Dreier was to be confirmed by the Bundesrat, the upper chamber. He would have become the vice president of the constitutional court, on track to become its president in 2010.

Shortly after Dreier's nomination became known, around January 12 (the nomination was leaked before it was announced, not exactly a good sign), opposition formed from two sides: The right criticized Dreier's position on stem-cell research. As a member of the National Ethics Council (a group of scientists, lawyers, philosophers, theologians, etc. formed to make recommendations on ethics questions in the life sciences), Dreier had argued that stem cells were not protected by Article I of the German Constitution, which declares that human dignity is inviolable. The left, on the other hand, criticized a footnote in a constitutional commentary Dreier had published, which discussed conditions under which torture could be justified. Again, the concept of human dignity was central to this debate, as Dreier argued that in situations in which a criminal violated the dignity of his victim, it would be justifiable to violate the dignity of the criminal in order to save the victim. (Basically the 24 scenario; in Germany, this was not primarily viewed in the terrorism context, however, but in the context of an actual kidnapping case, in which the police threatened to torture the presumed kidnapper, after he had been arrested, in order to make him reveal the whereabouts of the victim.)

In the end, the Christian Democrats refused to vote for Dreier, which meant he wouldn't get the needed 2/3 majority. By now, the Bundesrat has confirmed another appointee, Andreas Voßkuhle.

One interesting part of the public debate on Dreier's nomination was the question whether the German nomination process should be reformed. Several commentators criticized the partisanship and secrecy of the process. Some former constitutional court justices stated in interviews that they would not mind a process that was more transparent and allowed for a public debate on the candidates. In this context, the US Supreme Court confirmation process was viewed as a warning of what can happen if the process becomes too public. (Interestingly, the newspapers and magazines publishing commentaries and interviews seemed to assume everybody knew how the US process worked.)