What鈥檚 the best way to ensure impartial judges? Delaware prompts a rethink.
Delaware is home to one of the most highly respected state judiciaries in the country, and for more than a decade James Adams has wanted to be a part of it. The retired attorney will never have a chance to serve on one of the state鈥檚 highest courts, however, because he is not a registered Republican or Democrat.
Unlike almost any state court system in the country, courts in Delaware are subject to a partisan balancing requirement. Judges affiliated with one political party can have no more than a 鈥渂are majority鈥� on the state鈥檚 three highest courts, while the remaining seats must be held by judges affiliated with the 鈥渙ther major political party.鈥�
Those two provisions in the state constitution that have enforced partisan balancing for more than a century are there to safeguard and reinforce the courts鈥� reputations as objective and nonpartisan institutions. That reputation, many experts contend, is a big reason why more than half the corporations on the New York Stock Exchange have chosen to incorporate there.
Delaware Division of Corporations
Why We Wrote This
Amid widespread polarization, the need to make the courts appear nonpartisan is greater than ever. But how do you select judges without making them seem beholden to political interests?
But as skilled and respected as Delaware鈥檚 high courts may be, the state鈥檚 partisan balancing requirements are unconstitutional, Mr. Adams, an independent, is arguing in a lawsuit. Last April, the U.S. Court of Appeals for the 3rd Circuit agreed with him, ruling that the partisan balance requirement violated his freedom of association rights.
鈥淓ven though it has historically produced an excellent judiciary,鈥� wrote Judge Theodore A. McKee in , those provisions in Delaware鈥檚 constitution 鈥渃annot survive this First Amendment challenge.鈥�
鈥淧aradoxically, by elevating one鈥檚 political affiliation to a condition precedent to eligibility for appointment to the bench,鈥� he added, 鈥淒elaware has institutionalized the role of political affiliation rather than negated it.鈥�
Delaware Gov. John Carney has appealed the 3rd Circuit ruling to the U.S. Supreme Court, which is still trying to shake its own partisan cloud one year on from Justice Brett Kavanaugh鈥檚 politically toxic confirmation.
States have wrestled with the best way to select judges since America鈥檚 founding, with a few bursts of reform morphing the status quo. With concerns rising about the volume of money pouring into judicial election campaigns around the country, some are hoping that the Delaware case could prompt another long overdue reform movement.
鈥淭here tend to have been reform waves over time,鈥� says Alicia Bannon, leader of the聽Fair Court Project at the Brennan Center for Justice.
鈥淚n recent years there have been relatively modest changes,鈥� she adds. 鈥淏ut we haven鈥檛 seen a major effort in states to review how they choose judges.鈥�
Meanwhile, judicial election campaigns have become increasingly politicized and increasingly well financed. Between 2000 and 2009, 20 of 22 states that used contested elections for their supreme courts set spending records, according to . Between 2010 and 2017, five states for contested supreme court elections, including a national record $21.4 million in the 2015 Pennsylvania Supreme Court election.
At its most benign, an intensive campaign can drain how much time judges can commit to studying cases and writing opinions. Campaigns have grown more negative, . Other studies have shown that judges deliver , and favor parties .听
鈥淯ltimately it鈥檚 really important that judges have a sufficient level of independence from [politics], and that they鈥檙e able to do their jobs and decide cases based on what they think the law requires,鈥� says Ms. Bannon. 鈥淲hat we鈥檝e seen in these partisan elections is it鈥檚 increasingly hard for judges to do that.鈥�
In his concurring opinion, Judge McKee 鈥� who has served as a judge in a jurisdiction requiring partisan judicial elections 鈥� questioned some of the criticism of such elections. Campaign contributions, for example, are 鈥渋rrelevant鈥� to how partisan elections can damage the judiciary. How they could cause damage, he wrote is 鈥渢he extent to which it can undermine the public鈥檚 faith in the judges who are elected.鈥澛�
David Finger, an attorney who represented Mr. Adams at the 3rd Circuit, agrees.
鈥淲hen you have elected judges, judges are going to try to appeal to the electorate,鈥� he says. 鈥淚t鈥檚 very important to the ability of our judicial system that judges be, and be seen as, independent from outside influence.鈥�
Brennan Center for Justice
In the wake of Justice Kavanaugh鈥檚 confirmation last year, during which he decried an allegation of sexual assault during high school as 鈥渁n orchestrated hit鈥� by Democrats, and a number of 5-4 decisions along partisan lines in big cases, public opinion of the U.S. Supreme Court has . Republicans have a positive view of the high court. Democrats do not.
Partisan views of the judiciary are not a good thing for the nation鈥檚 highest court or any of the courts below it, says Mr. Finger. But that doesn鈥檛 mean partisan balancing is a solution.
鈥淭o uphold the First Amendment is a higher value than the concept of making good appearances for the sake of the political times,鈥� he says.
鈥淚deally we want the best and the brightest regardless of political affiliation,鈥� he adds. 鈥淚 don鈥檛 think you鈥檙e going to find any state [system] that鈥檚 perfect, because human beings aren鈥檛 perfect, but there are many states out there who have judiciaries of which they can be proud.听
The Supreme Court is considering this month whether to hear Delaware鈥檚 appeal of the 3rd Circuit ruling. If the justices end up ruling on the case, court watchers like Ms. Bannon hope it could spark a new wave of judicial selection reforms.
鈥淧art of what comes into play in this Delaware case is how much freedom are you going to give states to structure a system to restore some of those values, like public confidence in the system,鈥� she says.
The Brennan Center hasn鈥檛 taken a position on the case, she adds, but 鈥淚 think states are probably overdue for looking again at their systems.鈥�
Editor鈥檚 note: This story has been updated to correct David Finger鈥檚 first name.
