Delaware's Constitution, Art. 4, sect. 3, says "three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party." This political balance requirement, the Third Circuit held in Adams v. Governor of Delaware, is unconstitutional under the freedom of political association guaranteed in the First Amendment to the U.S. Constitution. The Governor of Delaware has asked the U.S. Supreme Court to hear this case.
In Adams, "the 3rd Circuit split with the 6th and 7th Circuits, as well as several trial courts, when it concluded that appointing authorities cannot consider the political affiliations of judicial candidates", Alison Frankel notes.
Adams explained that "In 1897, Delaware was unique in its method of judicial selection—it was the only state in the country in which the governor appointed judges without legislative involvement." But in that year, Delaware added senate confirmation and implemented an earlier version the political-balance requirement. Then "In 1951, as part of a wider series of structural changes to the Delaware judiciary, the provision was modified to exclude third party and unaffiliated voters from applying to serve as judges on the Supreme Court, Superior Court, and Chancery Court in Delaware."
In holding this political-balance requirement unconstitutional, Adams summarized Supreme Court precedent:
In Elrod v. Burns, Justice Brennan, writing for the
plurality, recognized that the practice of patronage
dismissals—dismissing a civil servant because his political
affiliation differed from the political party in power—is “inimical to the process which undergirds our system of
government and is at war with the deeper traditions of
democracy embodied in the First Amendment.” He
explained that to justify terminating a public employee based on political allegiance, the government must show that the practice “further[s] some vital government end"...The plurality suggested that the government’s interest in employee loyalty would allow it to discharge employees in policymaking positions based on political allegiance.
In Branti v. Finkel, the Court stated that “if an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.” The Court, however, moved away from Elrod’s policymaking distinction and held that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”
In Rutan, the Court confirmed that the general prohibition on politically-motivated discharge also applies to decisions to promote, transfer, or hire an employee. “Unless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms.” The Governor of Delaware sets forth two arguments to justify his practice of requiring applicants for judicial positions to be Democrats or Republicans: first, the Governor argues that because judges are policymakers, they can be hired or fired based on their political affiliation without restraint, and second, the Governor argues that even if they are not policymakers, Delaware has an interest in political balance that justifies the restrictions set forth in Article IV, Section 3.
In our cases applying Branti, Elrod, and Rutan, the Third Circuit has found that political affiliation is an appropriate requirement for assistant district attorneys, a city manager, and others. But Adams concluded "that a judicial officer, whether appointed or elected, is not a policymaker."
The American Bar Association’s Model Code of Judicial Conduct instructs judges to promote “independence” and “impartiality,” not loyalty. It also asks judges to refrain from political or campaign activity. The Delaware Code of Judicial Conduct similarly makes clear that judges must be “unswayed by partisan interests” and avoid partisan political activity. The Delaware Supreme Court has stated that Delaware judges “must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override properly stated legislative will.”
The Governor argues that by interpreting statutes,
sentencing criminal defendants, and crafting the common law, judges in Delaware make policy and exercise significant discretion. But the question before us is not whether judges make policy, it is whether they make policies that necessarily reflect the political will and partisan goals of the party in power. Independence, not political allegiance, is required of Delaware judges.
To the extent that Delaware judges create policy, they
do so by deciding individual cases and controversies before
them, not by creating partisan agendas that reflect the interests of the parties to which they belong.
We are aware that two of our sister Circuits have
concluded otherwise. In Kurowski v. Krajewski, the Seventh
Circuit determined that the guiding question in political
affiliation cases was “whether there may be genuine debate
about how best to carry out the duties of the office in question, and a corresponding need for an employee committed to the objectives of the reigning faction,” and answered that question in the affirmative with respect to judges and judges pro tempore. In Newman v. Voinovich, the Sixth Circuit similarly concluded that judges were policymakers who could be appointed on the basis of their partisan affiliation.
For decades, Delaware governors have issued executive orders establishing or continuing Judicial Nominating Commissions to assist the Governor regarding all appointments of judges. Adams says "Eleven of the twelve commission members are appointment by the Governor, and the twelfth is appointed by the president of the Delaware State Bar Association with the consent of the Governor. The commission provides a list of three recommended candidates to the Governor. The Governor is not free to ignore the commission’s recommendations; if he is not satisfied with the list, the commission generates another list of candidates. The nominating commission is politically balanced and comprised of both lawyers and non-lawyers."
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