How can the State Constitutional Court be protected from influence in times of growing extremist forces? Since the state elections in Thuringia and Brandenburg in 2024 with high AfD results, there have been considerations about this in the Senate and House of Representatives. They have now been included in a bill that the black-red Senate passed on Tuesday. Justice Senator Felor Badenberg (CDU) spoke of a “constitutional firewall”. The draft should become law before the summer. But the draft leaves the core question unanswered.
In the state elections in Thuringia and Brandenburg, the AfD received more than a third of the seats. This meant that no new constitutional judges could be elected without votes from the AfD. The respective state constitution provides for a two-thirds majority. Changing this constitutional provision is also not possible because that would require a two-thirds majority.
The Berlin parliament, in which the AfD currently only has 16 of 159 seats, would still have the opportunity to establish a so-called replacement election mechanism. This exists at the federal level: If the necessary two-thirds majority is not found in the Bundestag, the Bundesrat can elect new court members instead. According to Senator Badenberg, there were considerations about such a replacement mechanism, but they did not result in a proposed change.
In terms of content, Badenberg confirmed in response to a question from taz that ultimately this can only be afforded because the AfD is also rising significantly in Berlin, but has not yet gotten above 17 percent in surveys. “Thank God” there is a different development in Berlin than in Brandenburg. The AfD received over 29 percent of the vote there in 2024 and 34 percent in the most recent survey from mid-January.
No more re-election possible
What the bills now passed in the Senate actually change: In the future, it should be stipulated in the constitution and no longer be changed with a simple majority that judges may not be re-elected after a seven-year term of office. In addition, only the court itself should be able to remove one of its members. It should be made clearer than before that the decisions of the Constitutional Court are binding for the Senate and House of Representatives as other constitutional bodies as well as for all courts and authorities in the state of Berlin.
Senator Badenberg expressly thanked the legal policy spokesmen of the parliamentary groups of the CDU, SPD, Greens and Left Party for their cooperation. The Green MP Petra Vandrey, who was involved, said in a press release that the draft laws increased “the resilience of our highest court”. Her colleague Damiano Valgolio from the Left Party justified the need by looking abroad: “We can observe in the European neighboring countries Poland and Hungary, but also in the USA, how rising right-wing extremists are taking action against the independent judiciary and, in particular, trying to paralyze the constitutional courts.”
At the press conference, the Justice Senator was also confronted with questions about the number of business trips she took. Since taking office at the end of April 2023, Badenberg has been, according to research by Daily Mirror 43 times, more than twice as often on business trips as the Senate member with the second most business trips, Interior Senator Iris Spranger (SPD).
All business trips had a professional connection
Fedor Badenberg, CDU
“I can only say that all the business trips I took had a professional connection,” said Badenberg. According to her own statements, she uses every opportunity to exchange ideas with ministerial colleagues from other federal states. “I would be making myself more vulnerable if I didn’t.” She interpreted it as an insinuation that there was a connection between business trips on Fridays and Mondays and the corresponding weekend: “I definitely reject that.” The fact that she travels less on Tuesdays, Wednesdays and Thursdays is due to fixed dates in Berlin, such as the meetings of the Senate, Legal Affairs Committee and House of Representatives on these days.