September 5, 2019 / 8:03 PM / a month ago

Delaware asks Supreme Court to review its bipartisan judge-picking process

(Reuters) - The governor of Delaware filed a petition Wednesday at the U.S. Supreme Court, asking the justices to overturn a federal appellate ruling that Delaware's practice of balancing judicial appointments among Democrats and Republicans is a violation of the First Amendment of the U.S. Constitution.

Delaware’s constitution includes two provisions that, according to the governor’s petition, are intended to ensure the political independence of its state judiciary. One provision, known as the “bare majority” requirement, insists that no more than 50% of the judges of the Supreme, Superior and Chancery Courts be affiliated with either major political party. The other clause, dubbed the “major party” provision, requires that Delaware judges be affiliated with one of the two major parties in the state.

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In combination, the constitutional provisions maintain the political equipoise of the Delaware courts. But last April, the 3rd U.S. Circuit Court of Appeals ruled in Adams v. Governor of Delaware that the provisions violated the First Amendment right of free association of James Adams, a retired Delaware lawyer who alleged that he could not seek a judicial appointment because he is a registered independent.

Delaware, which was represented at the 3rd Circuit by Young Conaway Stargatt & Taylor, has brought in Wilson Sonsini Goodrich & Rosati as its Supreme Court counsel. Its petition, as I’ll explain, argues that the 3rd Circuit split with the 6th and 7th Circuits, as well as several trial courts, when it concluded that appointing authorities cannot consider the political affiliations of judicial candidates. More fundamentally, though, Delaware’s brief contends that the state’s insistence on a politically-balanced judiciary has contributed to the vaunting reputation of Delaware’s courts – as even the 3rd Circuit acknowledged in its opinion.

Delaware is of the view that the 3rd Circuit reached several mistaken conclusions to arrive at its finding of a First Amendment violation. But even if the appeals court was right about everything else, Delaware’s petition said, it paid too little regard to Delaware’s overwhelming interest in a balanced, objective judiciary. Delaware is a corporate haven in part because businesses trust that its courts are not politically skewed, the petition said. The state’s constitutional provisions are narrowly tailored, according to Wilson Sonsini, to serve that interest.

The paradox, of course, is that Delaware is implicitly arguing that individual judges are ideologically inclined: If every judge were entirely independent, there would be no need to balance appointments between the political parties. And the lawyer who won the case at the 3rd Circuit, David Finger of Finger & Slanina, told me in an interview on Thursday that he disputes that view of judges.

Finger said it’s “terrifying” and “repulsive” to posit that judges are expected to fulfill the political desires of whomever appointed them. “It’s the opposite of an independent judiciary,” he said.

So in a philosophical sense, Delaware’s Supreme Court petition isn’t just asking the justices to decide if political affiliations can guide state judicial appointments. Delaware is asking the U.S. Supreme Court to contemplate whether judges are policymakers – and, if so, what states can do to assure the fairness and objectivity of their decisions.

The policymaking issue arises from two Supreme Court cases, 1976’s Elrod v. Burns and 1980’s Branti v. Finkel, which examined political patronage jobs. The upshot of the decisions, is that officials cannot hire and fire employees based on their political affiliation unless the appointing authority can show that party affiliation is critical to the appointee’s job execution. In practice, the so-called Elrod-Branti rule means that employees like highway pavers and public defenders can’t be hired and fired because they belong to a particular political party - but that elected officials can consider the political affiliation of appointees involved in making policy.

The 3rd Circuit ruled in Delaware’s case that judges are not policymakers “because whatever decisions judges make in any given case relates to the case under review and not to partisan political interests.” But the state’s petition to the U.S. Supreme Court argues that both the 6th and 7th Circuits have construed judges to be policymakers and therefore an exception to the Elrod-Branti rule.

In 1988’s Kurowski v. Krajewski, the 7th Circuit ruled that public defenders who occasionally served as judges pro tempore could not be fired because of their party affiliation – but held along the way to that conclusion that “a judge both makes and implements governmental policy,” and that judgeships, particularly in states that elect their judiciary, have an implied political component. Five years later, in 1993’s Newman v. Voinovich, the 6th Circuit agreed “that judges are policymakers because their political beliefs influence and dictate their decisions on important jurisprudential matters.”

Delaware’s Supreme Court petition listed several other rulings, including a summary affirmance from the 2nd Circuit and several trial court opinions, that similarly deemed judges to fall into the Elrod-Branti exception for policymakers. The 3rd Circuit, Delaware said, appears to be the only court to have reached the opposite conclusion.

The petition said there’s nothing pejorative about describing judges as policymakers – Justices Antonin Scalia and Oliver Wendell Holmes are among the distinguished American jurists, Delaware said, to have acknowledged that judges shape the law. In Delaware, the petition said, that truth is borne out in fiduciary duty law and the business judgment rule. Both are of crucial importance to Delaware’s reputation as the epicenter of corporate law and both were created and shaped by judges.

Delaware urged the Supreme Court not to allow the 3rd Circuit to compromise its sovereign power over a matter as crucial as the selection of its judges. “Few values are more important to states — and especially Delaware — than the fairness, consistency, balance and objectivity of their courts,” the petition said.

Adams counsel Finger countered that Delaware has never convincingly tied the reputation of its judiciary to the state constitutional requirement that judgeships be distributed equally to Democrats and Republicans. That rhetoric, he said, is “mere puffery.”

Finger also said the circuit split over whether judges are policymakers is “artificial” because the 6th and 7th Circuits’ opinions involved states in which judges are elected. The 3rd Circuit, he said, showed a better understanding of a judge’s role, which should not be influenced by partisan politics. There’s simply no reason, according to Finger, for the U.S. Supreme Court to wade into a local dispute over Delaware’s judicial selection process, which no other state had adopted.

The justices may have their own reasons to avoid reviewing a case about the importance of judges’ political affiliations, given the rancor of the Supreme Court nomination process. At his own 2005 confirmation hearing, Chief Justice John Roberts, as you may recall, famously likened justices to baseball umpires, simply calling balls and strikes.

On the other hand, I would not be surprised to see business and election integrity proponents file amicus briefs backing Delaware, which, after all, adopted its constitutional provisions in an attempt to minimize political influence over its judges. If the justices take Delaware’s case, it could turn out to be one of the term’s sleepers.

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