Non-election of constitutional judges | After blocked election of constitutional judges: Black-blue on the horizon

Friedrich Merz currently sees no reason to replace the chairman of the CDU/CSU parliamentary group in the Bundestag. Asked whether his party colleague Jens Spahn was still the right person for the position, the Chancellor replied in a summer interview with ARD at the weekend: "Definitely yes." However, it is questionable how long this will remain true. The head of a government parliamentary group is tasked with ensuring so-called parliamentary discipline, even on sensitive issues, i.e., helping to organize parliamentary majorities for the coalition. Spahn failed to do this at the end of last week in the votes on the future judges of the Federal Constitutional Court . The election of the SPD-nominated lawyer Frauke Brosius-Gersdorf and two other candidates was removed from the Bundestag agenda at short notice on Friday.

The governing Social Democrats are deeply angered by this. The CDU/CSU are trying to downplay the conflict. Merz feels no time pressure and expressed optimism that the elections can be held at a later date. Until then, however, the conservatives feel there is a need for dialogue: 50 to 60 members of parliament from the CDU and CSU opposed Brosius-Gersdorf's election against the backdrop of a right-wing campaign by the AfD, so-called pro-life activists, and representatives of the Catholic Church, as the university professor takes the position that a widespread legalization of abortion would not violate the Basic Law.

Even if a face-saving solution is found for all sides and Brosius-Gersdorf, as proposed by the SPD, were to appear before the Union parliamentary group, answer questions and dispel doubts about her person, the question remains whether such situations could repeat themselves and endanger the continued existence of the black-red coalition. As a consequence, Left parliamentary group leader Heidi Reichinnek warned against a black-blue coalition "that horizon is becoming increasingly clear.

The cancellation of the judicial election plays into the hands of the AfD. A recently leaked internal strategy paper from the party essentially states that society should polarize itself through cultural wars. With the debate over the appointment of Germany's highest court, the party is driving precisely this polarization. AfD MP Beatrix von Storch claimed in the Bundestag that Brosius-Gersdorf had said that a child has no human dignity two minutes before birth. With nonsense like this—in reality, the lawyer argued that late-term abortions should remain fundamentally illegal —several right-wing conservative media outlets had already launched a campaign against the professor.

It's easy to assume that the question within the CDU/CSU isn't just about how it views a liberal lawyer. Rather, several conservative parliamentarians have used the situation as an opportunity to demonstrate that they lean more toward the AfD than the SPD on key issues. Friedrich Merz bears a large share of the responsibility for this. The fact that he also relied on the AfD's votes in the Bundestag vote on rejections at the German border and increased deportations at the beginning of this year was a taboo break in his dealings with the right-wing radical party.

Theoretically, the CDU/CSU and AfD together would already have a majority in the Bundestag. The lack of talks about a merger at the federal level is due, among other things, to foreign policy: The AfD opposes arms deliveries to Ukraine. However, there are powerful forces within the far-right party, especially in the West German state associations, that are pushing for it to no longer express its sympathetic views on Russian President Vladimir Putin and his war of conquest in Ukraine, and instead to consistently commit to NATO. If these prevail, a major hurdle to cooperation with the CDU/CSU would be removed.

An AfD strategy paper states that society should polarize itself through cultural battles. The AfD is driving this polarization forward with the debate over the composition of Germany's highest court.

At the same time, the AfD wants to focus on cultural struggles – for example, over gender-fair language, inclusion, and equal rights – and, as a result, envisions a future political landscape in which there are only left-liberal forces on one side and right-wing conservative forces on the other. The CDU/CSU would then have only the AfD as a possible coalition partner. Then, the radical right hopes, its leader, Alice Weidel, could one day even become Chancellor.

These speculations are certainly worth taking seriously. Until now, the practice was that delicate coalitions at the federal level were first prepared through test runs in the states. In 2018, the CDU declared at a party conference that it rejected coalitions and "similar forms of cooperation" with both the AfD and the Left Party. However, this is not set in stone, as recent statements from the CDU/CSU suggest.

Next year, the AfD is expected to be successful in the state elections in Mecklenburg-Western Pomerania and Saxony-Anhalt. In April of this year, CDU state and parliamentary group leader Daniel Peters from Mecklenburg-Western Pomerania told the "Nordkurier" newspaper that "there is no longer a firewall with the AfD at the local level in eastern Germany." Given the AfD's widespread electoral successes in the east, the "exclusion and demonization of the party must end." Peters likely spoke for many conservatives who sabotaged the judicial election in the Bundestag last week. And the AfD knows that such statements help it move closer to its goal of a coalition government with the Christian Democratic Union (CDU).