From the Hall: Supreme Court to hear challenge to Del.’s court balance law

Gov. John Carney smiles as he delivers his 2020 State of the State address in the House chamber at Legislative Hall. Special to the Delaware State News/Ariane Mueller

DOVER — Delaware’s five most recent governors and three most recent chief justices, along with the Republican National Committee, the Delaware State Bar Association, the National Conference of State Legislatures and other organizations and individuals, filed briefs last week in support of a case set to be argued before the Supreme Court next month.

At issue is whether a Delaware law requiring the courts to be politically balanced is constitutional. The statute, which has existed in some form or another since 1897, currently requires the courts to have no more than a one-member majority from either of the two major political parties.

In other words, the five-member Supreme Court, for instance, must have three Democrats and two Republicans or vice versa. If the balance is three to two in favor of the Democratic Party and a Republican steps down, the governor must select a Republican as the replacement.

In 2017, attorney and registered independent voter James Adams filed suit, arguing the law strips many “Delaware lawyers of opportunities for judicial appointments because of their political affiliation, in violation of the First Amendment to the Constitution of the United States.”

In response, lawyers for Gov. Carney wrote because judges are policymakers, political affiliation can be fairly considered. They also claimed the law ensures the courts are fair and impartial.

But a federal court disagreed, with Mary Pat Thynge, chief magistrate judge for the District of Delaware, striking down the law later that year.

Gov. John Carney subsequently appealed the case, and the court placed a stay on the decision to allow the governor to continue appointing judges during the process.

In early 2019, a three-member panel for the 3rd U.S. Circuit Court of Appeals concluded “portions of Delaware’s constitution that limit Adams’s ability to apply for a judicial position while associating with the political party of his choice violate his First Amendment right.” The state subsequently elected to appeal to the U.S. Supreme Court, which is expected to hear the case March 25.
Although the ruling in effect gives the governor more power, Gov. Carney has maintained the law is part of what makes Delaware’s judiciary so highly respected.

“Delaware’s judiciary has a longstanding reputation as objective, stable, and nonpartisan,” he said in a statement. “That is largely thanks to the wisdom of those who wrote the Delaware Constitution.

“They understood the importance of keeping partisan politics out of Delaware’s courts, which are widely respected nationwide for their excellence and garner tremendous respect from our citizens and members of our bar. I believe it’s more important than ever to protect Delaware’s appointment process from the partisan infighting that has come to characterize the federal appointment process. We look forward to presenting our case to the Court.”

The governor’s office spent almost $376,000 in legal fees defending the law in 2018.

Ins and outs: A lighter side of budget hearings

The Joint Finance Committee hearings that began last week will continue through the end of the month. The 12-member panel of lawmakers is scheduled to meet Monday through Thursday this week to hear from various state agencies and members of the public as legislators work on the monthslong budget process.

Thursday, which will feature the Department of Education, will probably be the most interesting day. More than one-third of the state’s General Fund expenditures go to public education, and some lawmakers feel education in Delaware has become too centralized.
Budget hearings can be dull at times, but you never know when some brief levity might pop up.

Case in point: Sen. Trey Paradee wore a different tie for each of the three hearings on Thursday, matching the primary colors of the higher education institutions appearing before the panel. After starting the day with a green tie for Delaware Technical Community College, he wore a red one for Delaware State University and then changed to a blue and gold one for the University of Delaware.