- Associated Press - Monday, October 5, 2020

DOVER, Del. (AP) - Attorneys for Gov. John Carney asked the U.S. Supreme Court on Monday to overturn a federal appeals court decision invalidating a provision in Delaware’s constitution that mandates a political balance among judges on the state’s most powerful courts.

The provision at issue limits judges affiliated with any one political party to no more than a “bare majority” on Delaware’s Superior, Chancery and Supreme courts, with the other seats reserved for judges affiliated with the “other major” political party.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled last year that the provision requiring the governor to split judicial nominations between the two major political parties violated the First Amendment and the freedom of association rights of attorney James Adams, who sued Carney in federal court. Adams, a former Democrat who later registered as unaffiliated, has said he wanted to apply for judgeships but didn’t meet the political affiliation requirements.

The appeals court also held that the “bare majority” provision could not be separated from the “major party” provision, even though the latter does not apply to Delaware’s Family Court and Court of Common Pleas. Those two courts are, however, subject to the “bare majority” rule.

The appeals court ruling came after a federal judge in Wilmington declared in 2017 that a narrow exception in the law allowing political affiliation to be considered in filling policymaking positions does not apply to judgeships.



Michael McConnell, a Stanford University law professor and former federal appeals court judge representing Carney, argued Monday that both provisions pass constitutional muster under the First Amendment. He also argued that Adams does not have standing to challenge either provision because he passed up several opportunities to apply for judgeships both before and after changing his party affiliation.

“His big problem is that his actions do not line up with his words,” McConnell said, suggesting that Adams has not shown actual injury but simply has an “academic disagreement” with the rules.

While much of Monday’s argument focused on Adams’ standing to sue, the justices also focused on the requirement that judges on Delaware’s most powerful courts must be either Democrats or Republicans.

“Could you explain to me why it has to be two parties only who can be judges?” Justice Sonia Sotomayor asked McConnell.

Other justices also expressed concern with the major party provision, with Justice Stephen Breyer suggesting that its coupling with the bare majority provision also was problematic.

“If a bare majority or even number are Democrats, the rest must be Republicans, and the Green Party need not apply. It can’t,” Breyer said.

McConnell said the major party provision is not intended to exclude independents or members of other minority parties, but to serve as a “necessary backstop” to the bare majority requirement.

“Without it, it would be just too easy for the governor to name a political ally from an allied party,” he said, noting that Adams was once a Democrat but now professes to be a “Bernie Sanders independent.”

Breyer seemed unpersuaded.

“How do you get around the fact that, the way that it is written and applied, you have to be a Republican or a Democrat, and there are other parties. Period,” Breyer said. “Why is that constitutional?”

McConnell argued that there is a compelling governmental interest in having a political balance on Delaware’s top courts, and that there is no other provision that would achieve that purpose in a less restrictive way.

McConnell added that even if the major party rule is struck down, there’s no justification for the court to also reject the bare majority provision, which he said was “of grave importance to the state.”

David Finger, the attorney for Adams, said the state cannot justify excluding people from serving as judges based on their political affiliations.

“Judicial engineering to avoid extremism in judging is not an interest that overcomes the First Amendment,” he argued.

Finger also rejected the notion put forth by Carney’s attorneys that the political balance mandate has resulted in Delaware’s courts being held in high regard by fellow judges and legal observers around the country.

“There’s no evidence that political discrimination has had any beneficial effect on the quality of justice in Delaware,” he said. “Merely repeating that it has doesn’t make it so.”

“There are other factors in Delaware which create an excellent judiciary and will continue to do so without these limitations on the rights of people other than Democrats and Republicans,” Finger concluded.

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