January 24th, 2021

On Law

Supreme Court will study whether states may require partisan balance for courts

 Robert Barnes

By Robert Barnes The Washington Post

Published Dec. 9, 2019

Supreme Court will study whether states may require partisan balance for courts
The Supreme Court will consider whether states may require courts to be largely balanced with members of the major political parties, it announced Friday.

The case comes from Delaware, where the state Constitution requires its highest courts to have no more than a bare majority of judges from one political party. For instance, the state's supreme court must be made up of three members of one party, and two of the other.

James Adams, a retired lawyer who left the Democratic Party because he said it was too centristic in Delaware, challenged that, saying it eliminated some people - such as him - from service on the courts and violated the First Amendment.

"Such a system assumes, without foundation, that Republicans and Democrats are monolithic in their judicial views and that their political views will control their decision-making," Adams said in his brief to the Supreme Court. "Worse, it reinforces the fears of the public that judges will decide cases based on political affiliation."

He and his attorney David Finger quote on the first page Justice Neil Gorsuch at his Supreme Court nomination hearing: "I am heartened by the support I have received from people who recognize that there is no such thing as a Republican judge or a Democratic judge. We just have judges in this country."

A panel of the U.S. Court of Appeals for the 3rd Circuit struck down the provision, but Democratic Delaware Gov. John Carney wants the Supreme Court to reverse.

He said in his petition to the court that "60 percent of the Fortune 500 and more than half of the corporations listed on the New York Stock Exchange are incorporated in Delaware, in no small part due to the reputation-and reality-of the Delaware courts as objective, stable, and nonpartisan."

He and his attorney, Stanford law professor Michael McConnell, added: "These qualities have not come about by accident. For more than 120 years, Delaware's Constitution has required a politically balanced judiciary."

The 3rd Circuit panel agreed that the Delaware courts do a good job. It took note of Supreme Court precedents that said politics may not play a role in the hiring and firing of most government workers. The exception, the court has said, is for those in "policymaking positions," where the governor has a right to employ those who agree with him and his policies.

Some federal courts have found judges to be "policymakers." But the 3rd Circuit panel decided otherwise: "While judges clearly play a significant role in Delaware, that does not make the judicial position a political role tied to the will of the governor and his political preferences."

The two sides agree Delaware is the only state with such strict ratios for its courts. Federal judges, such as Gorsuch, are nonpartisan, although studies have shown clear differences between those nominated by Republican presidents and Democratic ones.

The case is Carney v. Adams. It will be heard in the new year.

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