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The Second Senate of the Federal Constitutional Court: Astrid Wallrabenstein, Peter Müller, Peter M. Huber, Doris König (Chairman), Monika Hermanns, Sibylle Kessal-Wulf and Christine Langenfeld
Photo: Uli Deck / picture alliance
One hundred years ago, Professor Ernst Bumm of the Charité Berlin wrote in a report: »Professions that require quiet work in prescribed areas are just as good for women as for men.
The woman doesn't fit where the ability to make quick decisions and great responsibility come into question and special demands are placed on cold-blooded judgment and action that is independent of the mood of the moment.«
His report was intended to assess the woman's suitability for the profession of criminal judge.
From today's perspective, the verdict was a scandal: a woman as a judge - unthinkable!
In fact, at that time there was not a single female judge in Germany, which was due to the legislation.
It was not until 1922 that a new law opened up the way for women to work in the administration of justice.
It took another five years until Dr.
Maria Hagemeyer was appointed the first German judge in Bonn.
The National Socialist era set everything back to zero.
Only since the 1970s has real equality for women in this professional field slowly developed in Germany.
Today we have almost as many female judges as male judges.
A long way, almost everyone would probably agree: too long a way!
We use this example to point out the equally long journey of another population group to the offices of judge: people with an immigrant background (or, as the statistical category is still called today, with a migration background).
In 2020, the Federal Government’s Expert Commission on Integration Ability determined: “People with their own or family history of immigration are not represented, or are insufficiently represented, in the vast majority of areas of society in planning and decision-making processes;
This can be seen, for example, in the composition of the German Bundestag and the state parliaments.«
This depressing judgment for participation in the political sphere also applies to the public sector (12 percent of employees there have an immigrant history, compared to 27 percent of the general population).
Compared to these areas, however, the field of judges performs significantly worse.
There are no official figures for this.
But an estimate by the German Association of Judges from 2011 mentioned in the “Stuttgarter Zeitung” clearly indicates that the proportion of judges with a so-called migration background is around eight to nine percent.
With almost 22,000 judges across the country, that would be around 1,800 people with non-German roots.
If you look at the list of 456 federal judges, you won't find a name that immediately suggests an immigration history.
The mere fact that there is no survey or reliable data on this shows how little attention this question receives.
And that is around 60 years after immigration to Germany took place on a larger scale.
Just as with equality for women, we are sleeping through many decades in which an important group does not find the necessary representation in the judiciary.
Why is it so important to have more immigrant judges?
It's about justice and equal opportunities.
Above all, however, it is also about the credibility of the state, which should not disadvantage anyone because of their origin.
It may be prima facie evidence, but if after 60 years of visible migration we cannot find migrant people in federal courts, then it is evident that something is wrong with the procedures and structures for filling those positions.
It is also about strengthening a sense of belonging to the state among migrants and breaking down prejudices.
More judges - especially federal judges - with a non-German background would have a role model function and would have a positive impact on our society.
In migrant communities, the image of a fair state that offers more equal opportunities and sees immigrants as an equal part of society would be strengthened.
Stronger representation would therefore be very beneficial to social cohesion.
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And there is also a very apt argument for legal practice, which Mehrdad Payandeh from the Bucerius Law School Hamburg presented in the »Deutsche Richterzeitung« in 2017: Courts repeatedly deal with questions of discrimination and racist hostility.
For many judges without the relevant background experience, such offenses are often not fully comprehensible.
Against this background, Payandeh writes, »a stronger penetration of the judiciary with people with a migration background seems desirable«.
The Federal Anti-Discrimination Agency and the Federal Government Commissioner are putting their fingers into the same wound when they write in their fourth joint report: »Furthermore, it became apparent that there is also racist discrimination by judges against people with immigration and nationality status in court proceedings Escape story comes (ibid.).
Studies also show that courts sometimes pay little attention to specific experiences of racism, that there is a lack of knowledge and sensitivity to the issue, that victims of crime can be criminalized and that people with a history of immigration or flight are judged to be less credible in court.«
One only has to think back to the investigation into the NSU murders, in which a racist motive was ignored for far too long.
At the latest this historical unforgivability should have taught: In order to be able to judge social processes, such as in police investigations or in court, one also needs the greatest conceivable variety of social experiences and biographies on the part of those involved.
It should be in the interest of the German judiciary to eliminate such grievances and to ensure that “minorities” are represented to a large extent – also in order to give itself and judicial judgments more legitimacy for the population as a whole.
So why are there so few people with foreign roots in the judges' office?
The answer is more complex than in the case of women, who for a long time were not legally allowed to do so.
There are no written obstacles in this case.
We must mention the general educational disadvantage at this point.
Young people with a migration background are still less likely to take their Abitur.
They often do not come from academic families, which reduces the likelihood that they will go to university.
They are underrepresented at German universities.
The Higher Education Report speaks of the "educational funnel" in these contexts.
In law, an “educational leap” – i.e. doing better than the parents’ generation – is apparently also particularly difficult.
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In a study, the scientists Grünberger, Mangold, Markard, Payandeh and Towfigh see a particularly high "educational inheritance" on the one hand, but also a more difficult habitual access to the subject due to foreign experiences.
And yet: Let's assume that there really are approximately the estimated 1800 judges with a history of immigration in German courts.
Why then do they hardly make it to the top tier of federal courts?
The way there leads via the decision-makers in the Bundestag and Bundesrat as well as in the ministries.
From there, people with professional qualifications are proposed for the highest offices.
Conversely, does it mean that the proposers of the group mentioned deny their suitability for such offices?
Or are you simply not aware of any qualified candidates from this population group?
With the allegedly around 1800 judges with an immigrant background, that can hardly be the reason.
It is to be feared
The aforementioned study (»Diversity in Legal Science and Legal Practice«, 2021) states: »Achieving elites tend to recruit their own kind;
the supposedly objective decision criterion »suitability« or »fitness« thus potentially functions as a transmission belt for structural discrimination.«
To put it simply: the deputies in the judiciary selection committees and those responsible in the justice ministries of the federal states, almost without exception without their own immigration history, rarely think about proposing people with an immigration background, let alone pushing through these proposals up to an appointment.
Such a thesis probably leads to resentment among those addressed.
But prejudices are also characterized by the fact that nobody believes they have them.
As in the case of women - discussed in previous years for economic management bodies - one could now loudly demand a quota for people with an immigrant background.
However, as a last resort, quotas are the admission that society has not been open and progressive enough to counteract visible inequality in a reasonable manner.
If we want to avoid such an oath of disclosure, those responsible are called upon to face the sobering reality and then show progress.
Perhaps a look at science will also help, where the staff at universities, for example, far more often have a history of immigration or even foreign nationality.
Pointing out the problem and talking about it is what this article attempts to do.
A further step would be to create a reliable data situation so that the lack of these people in the judge's profession, which is often still subjectively felt, is given a statistical face.
We're lucky it's not 1921 anymore.
No respected professor today would dare to deny people with an immigrant background their suitability for the profession of judge.
In terms of discourse, we are a hundred years ahead.
However, if this imbalance is not to continue for decades to come, it is also necessary to make progress in practice.
