Ex-Ministers as Constitutional Judges - In Conversation with Mathias Möschel

Debates about the politicization of constitutional courts are as old as the institution itself. The concept’s originator, Hans Kelsen, emphasized the importance of preventingmembers of the government and parliament from sitting on constitutional courts, “because their acts are the acts to be controlled by the court.” While this idea is deeply entrenched—at least to the extent that simultaneous membershipin the executive or legislative and judicial branches is widely prohibited—the same does not hold true across other temporal dimensions. In his new book Ex-Ministersas Constitutional Judges, published by Oxford University Press, Prof. Mathias Möschel examines the effects—both negative and positive—of this practice, focusing on theconstitutional courts of France, Italy, Austria, and Germany.

Ex-Ministers as Constitutional Judges takes a unique and unprecedented comparative approach in the debate about the politicization of constitutional courts, drawing oninterviews with more than 30 current or former constitutional judges. Möschel explains that his interest in the phenomenon — the appointment of politicians to constitutional courts — arose from observing this practice in the differentcountries covered in the book, all of which he knows through either his work or his personal background. The final decisionto write a book on this topic was prompted by the affair surrounding Wolfgang Brandstetter, a former Austrian Federal Minister of Justice who became a judgeof the Austrian Constitutional Court with virtually no gap after serving as a member of the Executive. Following ascandal in which sensitive chats between Brandstetter — by then a judge — and employees of the Ministry of Justice became public, he resigned from his position.

The conversation then turns to the findings of Möschel’s book — specifically, the risks and benefits of appointing former ministers as guardians of the constitution.Although all the courts analyzed are located in mainland Europe, their design and institutional culture differ substantially, which leads to varying outcomeswhen politicians are appointed. As for the potential benefits, Möschel explains that strong political personalities can lend courts both prestige and political stamina — qualities that have been historically important, as theconstitutional courts were not always the widely accepted institutions they are today. Other important benefits include a deeper understanding of political processes — often greater than that of career judges or legal scholars — aswell as, in some cases, specific expertise in relevant fields. However, as Möschel points out, these advantages also come with risks — the “flipside of the coin.” Former politicians on constitutional courts not only pose an inherent challenge to the separation of powers but may also find themselvesruling on legal matters in which they were previously involved, raising concerns about the respect for a principle as old as ancient Rome: nemo iudex in causa sua — no oneshould be a judge in their own case.

The conversation then turns to the question of whether the risks or the benefits outweigh the other. While Möschel’s Austrian interviewees clearly argued that the risks aretoo high to be considered acceptable, in Italy and Germany the prevailing view is that “only the quantity makes the poison” — meaning former ministers areacceptable as long as they are not too numerous. In contrast, in France, it almost seems natural for a judge of the ConseilConstitutionnel to have previously been part of the executive. Weighing the risks and benefits he has identified, Möschel concludes that the former outweigh the latter.

 However, this issue does not seem to play a significant role in the context of democratic backsliding — at least not inPoland under the PiS Government or in Hungary under Fidesz, where the appointees aimed at capturing constitutional courts had different profiles.