WASHINGTON (CN) — Despite 27 years of Democratic governors appointing the state’s judges, Delaware courts have remained balanced thanks to a law requiring judicial seats to be split between the two major political parties, a lawyer for the state argued Monday before the Supreme Court.
In a virtual hearing, the eight justices heard Michael McConnell of Wilson Sonsini argue against the Third Circuit’s 2019 ruling that the system is unconstitutional.
“Delaware should be able to use partisan affiliation to bring political balance,” McConnell maintained.
For the last 120 years, Delaware law has mandated that no more than half of the judges on the state’s Supreme Court, Superior Court and Court of Chancery can be affiliated with one political party, reserving the rest of the seats for members of the other major political party.
Members of one party also cannot make up more than half of the judges on the Family Court and Court of Common Pleas, but the reservation for the other political party does not apply to those courts.
These rules put in place for a reason, McConnell said, as the framers of the Delaware Constitution had lived through domination of the courts by one major political party and then the other. The state’s courts are widely regarded as the least partisan in the nation and this is due to the so-called bare majority provision, he argued, which requires that no more than a bare majority of three of the state’s high courts can be made up of judges affiliated with any one political party.
The framers of this rule resolved that a bipartisan bench would be more stable and balanced, McConnell said.
Delaware State Bar member James Adams took issue with these provisions, which mean some judicial vacancies cannot be filled by certain candidates based on their political affiliation, and he sued Democratic Governor John Carney in 2017.
A retired attorney and longtime registered Democrat, Adams applied for a seat on the Family Court in 2009 but did not get the position. Adams claimed he considered applying for judgeships on other courts in 2014 and again in 2017, but the only openings were reserved for Republicans because of the political-balance requirements.
When Adams switched his party affiliation from Democrat to Independent in 2017, he says his chance to become a judge diminished further because of the rules reserving seats for a major party.
The district court ruled held the bare majority provision is unconstitutional and a three-judge panel of the Third Circuit agreed, finding it violates the First Amendment.
David Finger, Adams’ attorney, argued before the Supreme Court on Monday that the Delaware Constitution wrongly denied his client the opportunity to apply for judgeships.
“The state’s interest in its stability of a judicial system should not allow it to insulate it from appointing different political parties,” Finger said.
“The state’s position effectively argues a judge’s political party is determinative of how a judge votes in a case,” he added. “If the court accepts the premise, it is the end of the idea of an independent judiciary.”
Finger also pushed back on McConnell’s assertion that Delaware’s highly respected court system was a result of the law in question.
“There is no evidence that this highly respected judiciary results from this provision,” he said. “There’s nothing concrete to support that.”
McConnell, however, maintained that the two-party provision was made in the best interest of a balanced court.
“It prevents a governor from appointing someone who is very closely aligned with an allied party. It’s a backstop provision,” the state’s attorney said.
He further argued that the Third Circuit was incorrect in finding that the requirement is not severable from the other provision regarding judicial balance.
“We know it could stand on its own because it has for so many years. Even if we were to lose on the major-party provision, the bare-majority provision still must stand,” McConnell said. “Strict scrutiny is not appropriate.”
Justice Sonia Sotomayor said she saw three rights at issue in the case – Adam’s right as an Independent to seek judicial appointment, the governor’s right to decide who he wants to appoint, and the state’s right to prohibit the governor from acting in a particular way or selecting third-party judges.
Justice Clarence Thomas asked: “How would this be different if your judges were elected and an Independent was prevented from being on the ballot?”
McConnell conceded that it would be a violation of voters’ rights if Independent judges were not allowed on a ballot, but “when the state appoints judges those provisions do not apply.”
Justice Neil Gorsuch questioned the argument.
“I’m not sure why it doesn’t violate appointed positions,” he said.
Justice Stephen Breyer agreed that Delaware can impose the restrictions in the interest of maintaining a balanced judiciary, but he questioned its methods.
“How do you get around the fact that in order to apply you have to be a Democrat or Republican?” he said.
“The reason for this is not to exclude Independents or the Green Party, but to keep balance in the government,” McConnell replied. “There’s no other way to achieve partisan balance.”
Another focus of the hearing was whether Adams is planning to apply for judicial positions or pursuing the lawsuit for the sake of argument.
“There have been numerous judgeships for which he is eligible and he has passed up most of those,” McConnell said, adding that Adams testified he would consider applying for vacancies on two state courts he would be eligible for a seat on. “Despite the fact that those openings have been numerous he still brings a lawsuit.”
Chief Justice John Roberts asked Finger why Adams didn’t apply for any judgeships and questioned whether he was serious about becoming a judge.
Finger maintained he did.
“His statements were made in good faith, he did feel that he wanted to apply,” the attorney said. “There may have been intervening factors that prevented him from doing that.”