Justices to Decide Judicial Affiliation Case Out of Delaware

(CN) — The Supreme Court agreed Friday to decide the constitutionality of Delaware’s system of having political party affiliation requirements when it hires new judges.

Under the Delaware Constitution, no more than half of the judges on the state Supreme Court, Superior Court and Court of Chancery can be affiliated with one political party, with the rest of the seats reserved 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 provisions together mean some judicial vacancies cannot be filled by certain candidates based on their political affiliation.

Retired attorney and longtime registered Democrat James Adams applied for a seat on the Family Court in 2009 but did not get the position. Adams says 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.

Increasingly soured on the direction of the Democratic Party, however, Adams flipped his registration to Independent in 2017 — a move that he says further locks him out of a chance to become a judge because of the major-party reservation.

Frustrated with how the partisan requirements limited his candidacy, Adams filed a lawsuit claiming the requirements violate the First Amendment.

A federal judge sided with Adams in the dispute, as did the Third Circuit. The appeals court ruled that, because judges are not policymakers whose ability to perform their jobs effectively depends on their belonging to one political party, their appointment cannot be conditioned on their political affiliation.

The Third Circuit’s decision struck down both the requirement that judges affiliated with one political party cannot make up more than half of the courts and the reservation for the other major party.

Delaware Governor John Carney appealed to the Supreme Court, arguing the Third Circuit is in conflict with other courts to have considered the issue. Carney contends the state should have room under the 10th Amendment to take the steps it sees necessary to preserve an independent judiciary.

In addition to the First Amendment question on which the Third Circuit decided the case, the Supreme Court asked the parties to brief the court on whether Adams has standing to bring his claims.

Delaware is represented in the case by Michael McConnell with the Palo Alto, Calif., firm Wilson Sonsini Goodrich & Rosati. McConnell, a former 10th Circuit judge who also leads the Constitutional Law Center at Stanford Law School, did not immediately return a request for comment.

Adams is represented by David Finger of the Wilmington, Del., firm Finger & Slanina, who voiced confidence in his client’s chances.

“We believe we have a strong case and look forward to presenting it to the Supreme Court,” Finger said in an email Friday.

Per its custom the Supreme Court did not issue any comment Friday in granting a writ of certiorari.

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