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Thomas Kleine-Brockhoff

Germany

Thomas Kleine-Brockhoff is a Senior Director at the German Marshall Fund of the United States, a transatlantic public policy and grant-making foundation. He overseas the fund's policy programs. He was previously the Washington bureau chief of the German newsweekly, Die Zeit. Close.

Thomas Kleine-Brockhoff

Germany

Thomas Kleine-Brockhoff is a Senior Director at the German Marshall Fund of the United States, a transatlantic public policy and grant-making foundation. more »

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The Quiet German – No Evidence, No Injustice

The good news is: no chief justice has ever been removed from office. Germany cannot serve as a model for Pakistan's President Pervez Musharraf, who felt it was time to get rid of the country's most important judge. Neither can Germany be part of a transatlantic "best practices" competition with the United States. Nobody has ever heard of a whole slate of federal prosecutors being fired for apparently political reasons.

The reasons for this glorious state of the German judicial branch are less flattering. And if one looks closely, the state of affairs may not be all that great after all.

Most Germans believe that their judiciary is impartial. They believe that their public servants remain politically neutral. They trust their bureaucracy. They have believed in these things for many years…for too many years. In fact, the idea of the impartial technocrat is part of their Prussian heritage. And incidentally, it used to be an instrument of authoritarian rule.

Germans marvel at the degree of democratic control in the American system. They distrust juries. They wonder why sheriffs and district attorneys should be elected. They dislike the intense politicization of the process of choosing a Supreme Court justice. They prefer the selection to be removed from the lowlands of party politics. It makes more sense to them, since most people believe in the neutrality of bureaucrats and judges anyway. They don't seem to mind that quiet backroom deals are struck between the political parties over the nomination of Supreme Court justices.

Transparency and accountability don't appear to be very important. Germans don't hear about the removal of federal or state prosecutors for political reasons for one simple reason: the rules governing the disclosure of government documents do not give the German Parliament as much power as the U.S. Congress enjoys. How could one ever prove that the process of removal from office was politicized?

I remember covering a political scandal years ago. Several politicians were investigated because of alleged bribery. One state prosecutor uttered a sentence I will not forget: "Once you have to take on such a case, you are stuck with it." There seems to be no benefit to be had gained by investigating politicians. First, it takes time. Colleagues in your district will hate you for it, as they take on your day-to-day business for you. Second, one cannot build a career on "political" investigations. Every investigation creates a powerful adversary.

Why does this even matter if Germany enjoys such phenomenal judicial independence? Well, maybe because the system is in fact as imperfect as most others in the Western world. Maybe Germans enjoy as much silence as they enjoy impartiality.

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