PHILADELPHIA (CN) — A Third Circuit judge questioned the constitutionality Tuesday of a Delaware law that requires judges to align themselves with a major political party.
“I will bet you if I were to ask a sixth grader who has had some exposure to social studies, and I would tell the student ‘You’re guaranteed political association,’” U.S. Circuit Judge Theodore McKee said, “they would wonder why, if they were a member of the Independent Party, they could never be a judge.”
James Adams, a registered Independent and former attorney with the Delaware Department of Justice, brought the underlying suit last year after a mandate in the Delaware Constitution prevented him from applying for any open judicial positions.
The 120-year-old requirement states that seats on the judicial bench should be split between Republicans and Democrats, excluding all other political parties from serving.
After Chief U.S. Magistrate Judge Mary Pat Thynge found the mandate unconstitutional, Delaware Governor John Carney Jr. is vying for the Third Circuit to reverse.
“The point of the provision is to try to assure that the members reflect the political mainstream of Delaware,” David McBride, an attorney for the governor with the firm Young, Conaway, Stargatt & Taylor, argued Tuesday at a hearing in Philadelphia.
McBride says the argument is about whether judges can be classified as policymakers; he says they can.
“The idea of an independent judiciary and a policymaker don’t seem to fit side by side,” U.S. Circuit Judge Julio Fuentes noted.
David Finger, representing Adams, denied meanwhile that judges are policymakers on the basis that they do not answer to appointed authority.
“A football coach at a state university can be a policymaker, why can’t a judge,” Judge McKee questioned Finger.
Finger, an attorney with Finger & Slania, said there is no evidence that this requirement has benefited the Delaware judiciary.
McBride reminded the panel, which was rounded out by U.S. Circuit Judge Luis Restrepo, that Adams was a registered Democrat until eight days before he filed the lawsuit.
“He is totally excluded unless his is Democrat or Republican, and he deserves the right of association,” Judge Fuentes added.
The panel did not indicate when they will rule on the case.
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