Judicial Balance Provisions Go to the Supremes

In Delaware, we don’t elect judges. Which is good.

But we force the Governor to appoint Governors of the opposition party to enforce some outdated notion of judicial balance. That is bad.

Delaware’s Constitution requires each of the major courts (Supreme Court, Superior Court, Court of Common Pleas, Chancery Court) to be as politically balanced as possible. Most of the courts have an odd number of judges/justices, so the courts have to be divided at either 4 Democrats and 3 Republicans and vice versa (depending on who the Governor is).

It is a Minority Party protection racket. Delawareans have not elected a Republican to the Governorship since 1988 when we re-elected Governor Mike Castle. Since 1992, we have elected Tom Carper, Ruth Ann Minner, Jack Markell and John Carney to the Governorship. By all rights, every single judge appointed and confirmed should be a Democrat or a liberal after nearly 30 years of Democratic control.

In December 2017, Federal District Court Judge Mary Pat Thynge, the chief magistrate judge for the District of Delaware, ruled the 1897 Judicial Balance provision of the Delaware Constitution to be unconstitutional under the Federal Constitution 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.”

John Carney then appealed to the full U.S. Court of Appeals for the Third Circuit. In May 2019, the full panel denied Governor John Carney’s appeal. So the Governor has appealed the case to the U.S. Supreme Court.

The Supreme Court finally heard this case, Carney v. Adams, last week, after some delays related to the COVID-19 Pandemic. From the Delaware State News:

Speaking for the state, former 10th Circuit Judge Michael McConnell argued that the balance provision is constitutional and, even if it is struck down, the requirement to have “not more than a bare majority of the members of all such offices” from one party should still stand. Allowing independents to be on the bench, he told the court, could lead to gaming the system, in essence.

“I mean, take Mr. Adams as a great example of this because … after having been a lifelong Democrat, he professes to be a Bernie Sanders independent,” he said. “So, if there were already a Democratic majority on the court and the governor were able to name Mr. Adams, it would just fly in the face and frustrate the purposes of the political balance provision.”

The law is the best way anyone has found to protect “the state’s compelling governmental interest in political balance on the courts,” Mr. McConnell told justices in response to questioning.

Justices Kavanaugh and Sotomayor both seemed skeptical in their questioning about the provision limiting applicants for Judgeships to only Democrats and Republicans, though, incongruously, there seemed to be more support for the bare majority provision. We shouldn’t assume that the Supreme Court is going to vote along ideological or even partisan lines here. You might assume that conservatives on the Court (Roberts, Alito, Thomas, Gorsuch and Kavanaugh) will all be in support of the judicial balance provisions, and that the Court’s liberals will be opposed, but I would think that the Court’s liberals will be far more open to the law’s affect on individual rights (i.e. the Adams’ argument that he is being discriminated against because he is not a Democrat or Republican) and conservatives might be open to the argument that this constitutional provision ties the hands of the Executive, whose powers of appointment should not be constrained. It is easy to imagine a 8-0 decision against Carney here. But we will see.