Third Circuit Nixes Political Affiliation Rule for Judges

PHILADELPHIA (CN) — Striking down a century-old Delaware law, the Third Circuit called it unconstitutional Tuesday to require that judicial candidates align themselves with certain political parties.

For the last 120 years, Delaware law has required seats on state courts to be split between Republicans and Democrats. Though the state argued that elected officials have an interest in appointing “loyal employees who will not undercut or obstruct the new administration,” the three-judge panel in Philadelphia found that position unavailing.

The policymaking exception is inappropriate if a job “cannot properly be conditioned upon allegiance to the political party in control,” U.S. Circuit Judge Julio Fuentes wrote for the court.

“Judges simply do not fit this description,” Fuentes added. “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.’ Independence, not political allegiance, is required of Delaware judges.”

Delaware had brought its appeal to the Third Circuit after U.S. Magistrate Judge Mary Pat Thynge sided in 2017 with James Adams, a former lawyer with the Delaware Department of Justice who was deterred from applying for a vacant judicial position because he is a registered Independent. 

Though Delaware John Carney sought to portray judges as policymakers, Fuentes found the description inapt “because whatever decisions judges make in any given case relates to the case under review and not to partisan political interests.”

Fuentes also concluded Monday that the party-affiliation requirement is insufficiently tailored, saying the law’s popularity with judges “cannot suffice as a justification to bar candidates who do not belong to either the Democratic or Republican parties from seeking judicial appointment.”

David Finger, who represented Adams, applauded the decision. 

“This is a victory for Delaware’s legal system because it increases the pool of qualified candidates,” Finger, of Finger Slanina law firm, said in an email. 

In addition to the lead opinion, U.S. Circuit Judge Theodore McKee offered his perspective as a former state court judge in a 5-page concurrence that heaps praise on the Delaware Judiciary.

“As we explain, the resulting system of judicial selection is in conflict with the First Amendment right of association even though it has historically produced an excellent judiciary; accordingly, it cannot survive this First Amendment challenge,” McKee wrote. “Although this is as paradoxical as it is ironic, it is really not surprising that the judicial system that has resulted from Delaware’s political balance requirements is as exemplary as the judges who comprise it., it is really not surprising that the judicial system that has resulted from Delaware’s political balance requirements is as exemplary as the judges who comprise it.”

McKee said it is up to lawmakers now to amend the state constitution. 

“No matter what ensues, I have little doubt that the constitutional provisions which we today invalidate have resulted in a political and legal culture that will ensure the continuation of the bipartisan excellence of Delaware’s judiciary,” McKee wrote. “That culture appears to be so firmly woven into the fabric of Delaware’s legal tradition that it will almost certainly endure in the absence of the political affiliation requirements that run afoul of the First Amendment.” 

Attorneys for the governor did not respond to an email seeking comment.

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