Deadlock is a familiar phenomenon when it comes to the election of constitutional court or other apex court members. Chambers of parliament, judicial councils and similar bodies with legal powers to appoint or nominate all or part of these judges may find themselves unable to produce the relevant majority decision. Stalemate is more likely to occur where a qualified majority – often of two thirds or three fifths – is required, but it may of course, and has in fact, come about under simple majority requirements, too. Currently, several appointments for the Spanish Constitutional Tribunal, inter alia, are blocked by a deadlocked General Council of the Judiciary (see here, here or here). The same has occurred in Spain on earlier occasions, and many other countries – Costa Rica, Croatia, the Czech Republic, Italy, Lebanon, Hungary, to name just a few examples – have witnessed similar problems (details and references here, p. 238, notes 715 ff.). In Germany, too, replacements on the constitutional court often take place with some delay; in most cases, however, this has been a matter of some days or weeks- only, in recent decades. (See data on tenure in the Wikipedia List of Justices of the Federal Constitutional Court.)
Depending on legal frameworks and other circumstances, delayed appointments can, at worst, result
- in a court being understaffed for a long time and, possibly, the ideological balance, if any, in the composition of the court (upon which the court’s functioning as a neutral arbiter in ideologically fraught matters depends) being disturbed as a consequence,
- in the court being altogether incapacitated due to falling short of an applicable quorum, or
- in a court not being put in operation in the first place, as was the case in Tunisia, where the Constitutional Court provided for in the constitution of 2014 was never set up due to failure to obtain the required two-thirds majority for the part of the justices to be elected in parliament. (Meanwhile, even the Provisional Instance to Review the Constitutionality of Draft Laws has been abolished, and a new Constitution, tailored to the wishes of the incumbent president and providing that all the members of the Constitutional Court be appointed by presidential decree, was adopted in 2022.)
In many jurisdictions, rules are in place which aim to prevent at least some of these adversities. To mention only the two most frequent devices: In Germany, as in quite a number of other countries, it is provided that in case of delay in appointments, the regular term of incumbent justices is extended until a successor takes office. Another frequent default solution is to lower or give up qualified majority requirements in the event of a blockage occurring at first attempt(s). In Italy, for instance, for those judges of the constitutional court who are to be elected by parliament, the two-thirds majority requirement is lowered to three fifths after three unsuccessful ballots. (References, more examples for all of this, and examples for other solutions in some countries, to which the objections raised in the next paragraph also apply, here, pp. 239 ff.) These two so-called „anti-deadlock“ mechanisms – extended tenure of incumbent judges or reduction of qualified majority requirements in case of failed timely replacement – are also recommended by the Venice Commission (here, pp. 5 f.).
There is, however, a problem with these solutions: Under both of them, it is foreseeable how blocking a timely replacement will affect the composition of the relevant court. Both of them will therefore not, or only in particular circumstances, remove incentives to block. Extended tenure of incumbent justices will just attenuate the consequences of blockage. It will prevent vacancies in case of a conflict over the replacement in the competent body (unless the incumbent justice cannot be made to stay for reasons other than the end of his or her regular term). But each side will know what blockage will mean for the composition of the court, and accordingly, whether blockage or cooperation is more likely to further its political goals concerning that composition. Blockage thus remains an attractive instrument of manipulation. The term „anti-deadlock-mechanism“ is therefore misplaced. Partially at least, the same is true for the reduction-of-majority-requirements mechanism. In a parliament or judicial council, it will usually be easy for each party to a conflict over judicial appointments to figure out whether or not something is to be gained from blocking a decision in the first ballot(s) until the less demanding majority requirement obtains. The effect of the reduction mechanism is therefore unlikely to be much different from that of having a reduced majority requirement right from the start (which is not a reliable anti-deadlock-mechanism because, as already mentioned, blockage may occur even under a simple, non-qualified majority requirement, depending on circumstances).
In order to remove incentives to block appointments as far as reasonably possible, the institutional design must be such as to make the effect of blockage as unforeseeable as reasonably possible. To that end, appointments (or the nominations prerequisite to them) must be taken out of the hands of the normally competent body or bodies in case of failure to nominate or appoint in time, and have an alternative mechanism step in. This alternative mechanism should be: choice by lot from proposals to be presented by a plural selection of institutions, such as associations of practising lawyers, of judges, and of law professors and/or deans of law faculties, associations of judges and/or assemblies of the judges of (other) high courts, and the plenary of the court for which the replacement is to be made.
I have suggested that instead of the relevant associations, their boards might be called upon to file proposals, so as to speed up the process (here, p. 242). It should be considered, though, that, depending on circumstances, it may be preferable to provide for as broad and open a participation in each of the groups involved as possible (i.e. to entrust general membership, assemblies, plenaries, rather than presidents, boards etc., wherever feasible) in order to avoid any dominant influence of politicised power structures, even if that would make the process more time-consuming. The point of this fall-back arrangement is its preventive effect, and the more incalculable the outcome is for political decision-makers, the better this will work. Like all institutional devices, this one, too, may fail. But in comparison to all others it is, at least, less likely to.