After 2010 one of Fidesz’s first tasks was to “pack” the Constitutional Court. The party’s two-thirds majority allowed Viktor Orbán to add four new hand-picked judges to the eleven-member court. It was an act that transformed the court into a reliable partner of the Orbán government. It also extended the judges’ tenure to twelve years. Last year Chief Justice Péter Paczolay retired, and this year the terms of three judges will expire. So four judges needed to be appointed to bring the court back to full strength.
The problem was that Fidesz no longer has a two-thirds parliamentary majority. No longer could it single-handedly nominate its most loyal supporters. The party had to make a deal with at least one other party.
In theory, the support of Jobbik would have sufficed, but an exclusive alliance with a party considered by many to be neo-Nazi would not play well internationally. And so, however reluctantly, Fidesz invited all the opposition parties to cut a deal. The party’s suggestion was that it would nominate two judges while MSZP and Jobbik would each be entitled to nominate one.
Negotiations began in December 2015, but soon enough the talks broke down because Jobbik insisted on nominating Krisztina Morvai, Jobbik’s far-right representative in the European parliament. MSZP, after some hesitation, also withdrew from the negotiations. I don’t know how much influence the statement issued by the Károly Eötvös Institute had on the party’s decision, but it recommended the offer be rejected. Its reasoning was that all eleven judges who will remain on the court were appointed by Fidesz. Therefore any deal at this junction would only legitimize an already illegitimate body.
It was at this point that LMP showed an interest in continued negotiations. András Schiffer was still the co-chair of the party, and he didn’t agree with the Eötvös Intézet’s position. At the same time the party refused to participate in any kind of deal that would involve the other parties in the selection of the judges. Szabolcs Dull of Index thought it improbable that Fidesz would agree to LMP’s proposal. But while all the other parties condemned Schiffer’s willingness to negotiate, by January 2016 Fidesz and LMP were seriously discussing candidates for the four positions. As usual, it was the Demokratikus Koalíció that was the most vocal opponent, but Viktor Szigetvári of Együtt also protested in an open letter to András Schiffer. MSZP by mid-January decided to follow their lead.
The negotiations between Fidesz and LMP, represented by András Schiffer, continued. Between January and April Schiffer came up with 17 possible candidates for the job. Not much information about the candidates leaked out, but from the few reports I found it looks as if Schiffer negotiated hard. For example, he said he would accept a Fidesz nominee–Attila Horváth, a legal historian–only if Fidesz gave up the idea of renominating Barnabás Lenkovics. As HVG put it, the two together “would have been too much” for LMP given their strongly right-wing leanings. LMP apparently also insisted on a female candidate–Ildikó Marosi, a judge on the Kúria, Hungary’s highest court. It looked at this point as if Fidesz would swallow the bitter pill that, with the exception of Attila Horváth, all the other names came from LMP’s Schiffer. The nominees would be Marcel Szabó, Ildikó Marosi, Attila Horváth, and Balázs Schanda.
But then, a few days after the publication of HVG’s report, Viktor Orbán changed his mind. The deal seemed dead for six months when, out of the blue, on November 15, Gergely Gulyás called on András Schiffer, the retired chairman of LMP, to say that his party was ready to accept the three LMP-nominated judges. The Fidesz decision was completely unexpected. Members of the parliamentary judicial committee didn’t learn about the deal until the second half of the week.
Jobbik was stunned. They had participated in only two discussions in the spring and, as far as they knew, the deal was off. Now suddenly there were four judges who were elected by secret ballot this morning. The yes votes came exclusively from Fidesz-KDNP and LMP. Altogether 136 votes, three votes over the necessary 133. LMP delivered.
It is something of a mystery why Viktor Orbán changed his mind and accepted the deal in which, at least on the surface, LMP played the dominant role. Ákos Hadházy couldn’t give a good explanation for Fidesz’s reversal on the issue. Some commentators believe that the sudden acceptance of LMP’s assistance had something to do with Fidesz’s acrimonious relations with Jobbik of late. Fidesz wanted to show Gábor Vona that it doesn’t need Jobbik; it can turn elsewhere to achieve the two-thirds majority if it wants to. Also, the government had been battered by its loss on the constitutional amendments, with Jobbik pulling its support, and an important parliamentary victory was something Viktor Orbán badly needed.
The opposition parties are up in arms. They consider the politicians of LMP collaborators in the furtherance of Orbán’s political system. Because of the absolute secrecy in which the LMP-Fidesz negotiations were conducted, we know very little about the candidates. For the time being we don’t whether Ákos Hadházy’s optimism is justified. He hopes that “perhaps this way we can stop on the road from democracy to dictatorship.” Something I very much doubt.