Delaware has this absolutely ridiculous law that really encapsulates how horrible the “Delaware Way” really is. We actually have a law that requires that each major court in this state be as equally balanced between Democrats and Republicans as possible. The Delaware Supreme Court, Superior Court, Court of Chancery, Family Court and Court of Common Pleas have to have an even or near-even number of Republicans and Democrats. No matter what. No matter if the state has rejected Republicans for the last 26 years. No matter how bad the state Republican Party gets, they are entitled by law to equal representation on the courts.
Elections should have consequences, and one of the consequences is that the winner of the Presidency or the Governorships get to appoint federal or state judges respectively. By all rights, the entire judiciary of the state should be filled with judges appointed by Democrats. Some may be Republicans. Some may be independents. That of course is the Governor’s (and the Senate’s through the confirmation process) choice. There should not be a law forcing his or her hand. And Republicans should not be rewarded with representation on the courts they did not earn or deserve.
In December 2017, Federal District Court Judge Mary Pat Thynge, the chief magistrate judge for the District of Delaware, ruled the 1897 Judicial Balance law to be unconstitutional after a lawsuit from an independent judicial candidate asserted that the law violated his constitutional rights.
Judge Thynge held that the law “violates the First Amendment by placing a restriction on governmental employment based on political affiliation in the Delaware judiciary.” Governor Carney had the state appeal the decision to a three-judge panel of the Third Circuit Court of Appeals. Just last month, that panel affirmed Judge Thynge and held that “portions of Delaware’s constitution that limit [the independent applicant’s] ability to apply for a judicial position while associating with the political party of his choice violate his First Amendment right.”
The state has paid almost $376,000 in legal fees to defend this ridiculous law. Carney has not said whether they will appeal to the full Third Circuit. And when he loses there, what is he going to do, appeal to the freaking U.S. Supreme Court? How does John Carney think that will play to his Democratic base in a reelection year? It is time to give up the fight, Mr. Carney.