I have long thought Delaware’s requirement that there be balance between the parties on the courts was not only ill advised but unconstitutional. Finally, it would seem that Chief Magistrate Judge Mary Pat Thynge of the U.S. District Court of the District of Delaware agrees. Her Honor writes that the state constitutional requirement “violates the First Amendment by placing a restriction on governmental employment based on political affiliation in the Delaware judiciary.”
The Delaware Constitution limits judgesphips to members of “one major political party” or “the other major political party.” It enshrines the two party system in our form of government, but doesn’t directly name which parties. Still, but specifying the major parties, it means the Democratic and Republican parties. And thus that has the effect of discriminating against judges who are not members of those parties.
Truth be told that is not the reason I oppose the balance requirement, though is a fine reason to find the law unconstitutional. My position is that the Governor elected should be able to fill the courts at all levels with the judges he finds suitable and that agree with his philosophy. Why should a Democrat be constitutionally require to pick a Republican or vice versa?
No other state requires its courts to be politically balanced. A spokesman for Gov. Carney said the governor’s office will “continue to review the decision and its potential implications.” The judiciary declined to comment. I wonder if it would be his decision of Attorney General Matt Denn’s on whether the state DOJ, which defended the law in court, whether the state would appeal to the full Third Circuit.