What’s the best way to ensure impartial judges? Delaware prompts a rethink.

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?

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Volunteers wave at incoming voters outside a Flowood, Miss., precinct, on Aug. 27, 2019. Mississippi was the first state in the union to allow appointment of judges via popular vote.

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States have wrestled with the best way to select judges since America’s founding. But with concerns rising about the volume of money pouring into judicial election campaigns around the country, some are hoping that a Delaware case could prompt another long overdue reform movement.

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 “bare majority” on the state’s three highest courts, while the remaining seats must be held by judges affiliated with the “other major political party.”

Retired attorney James Adams, an independent, sued because these requirements block him from becoming a judge. 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.

The Supreme Court is considering this month whether to hear Delaware’s appeal of the ruling. “Part 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 ... public confidence in the system,” says Alicia Bannon of the Brennan Center for Justice.

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’s 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 “bare majority” on the state’s three highest courts, while the remaining seats must be held by judges affiliated with the “other major political party.”

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’ 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.

SOURCE: Delaware Division of Corporations
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Jacob Turcotte/Staff

But as skilled and respected as Delaware’s high courts may be, the state’s 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.

“Even though it has historically produced an excellent judiciary,” wrote Judge Theodore A. McKee in a concurring opinion, those provisions in Delaware’s constitution “cannot survive this First Amendment challenge.”

“Paradoxically, by elevating one’s political affiliation to a condition precedent to eligibility for appointment to the bench,” he added, “Delaware has institutionalized the role of political affiliation rather than negated it.”

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’s politically toxic confirmation.

States have wrestled with the best way to select judges since America’s 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.

Henry Gass and Jacob Turcotte/Staff

“There tend to have been reform waves over time,” says Alicia Bannon, leader of the Fair Court Project at the Brennan Center for Justice.

“In recent years there have been relatively modest changes,” she adds. “But we haven’t seen a major effort in states to review how they choose judges.”

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 a 2017 American Bar Association report. Between 2010 and 2017, five states set new spending records 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, some studies have found. Other studies have shown that judges deliver harsher sentences in election years, and favor parties who support their reelection campaigns

“Ultimately it’s really important that judges have a sufficient level of independence from [politics], and that they’re able to do their jobs and decide cases based on what they think the law requires,” says Ms. Bannon. “What we’ve seen in these partisan elections is it’s increasingly hard for judges to do that.”

In his concurring opinion, Judge McKee – who has served as a judge in a jurisdiction requiring partisan judicial elections – questioned some of the criticism of such elections. Campaign contributions, for example, are “irrelevant” to how partisan elections can damage the judiciary. How they could cause damage, he wrote is “the extent to which it can undermine the public’s faith in the judges who are elected.” 

David Finger, an attorney who represented Mr. Adams at the 3rd Circuit, agrees.

“When you have elected judges, judges are going to try to appeal to the electorate,” he says. “It’s very important to the ability of our judicial system that judges be, and be seen as, independent from outside influence.”

SOURCE: Brennan Center for Justice
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Jacob Turcotte/Staff

In the wake of Justice Kavanaugh’s confirmation last year, during which he decried an allegation of sexual assault during high school as “an orchestrated hit” by Democrats, and a number of 5-4 decisions along partisan lines in big cases, public opinion of the U.S. Supreme Court has become increasingly polarized. 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’s highest court or any of the courts below it, says Mr. Finger. But that doesn’t mean partisan balancing is a solution.

“To uphold the First Amendment is a higher value than the concept of making good appearances for the sake of the political times,” he says.

“Ideally we want the best and the brightest regardless of political affiliation,” he adds. “I don’t think you’re going to find any state [system] that’s perfect, because human beings aren’t perfect, but there are many states out there who have judiciaries of which they can be proud. 

The Supreme Court is considering this month whether to hear Delaware’s 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.

“Part 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,” she says.

The Brennan Center hasn’t taken a position on the case, she adds, but “I think states are probably overdue for looking again at their systems.”

Editor’s note: This story has been updated to correct David Finger’s first name.

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