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Carney appeals to Supreme Court over court political balance

By RANDALL CHASESeptember 5, 2019

DOVER, Del. (AP) — Democratic Gov. John Carney is asking the U.S. Supreme Court to settle a fight over a provision in Delaware’s constitution requiring a political balance among state court judges.

This week’s filing comes after a February federal appeals court ruling in favor of James Adams, a lawyer who sued Carney over a constitutional provision that requires the governor to split judicial nominations between the two major political parties. Adams, a former Democrat who later registered as unaffiliated, argued that he wanted to apply for judgeships but didn’t meet the political affiliation requirements.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the constitutional provision requiring the governor to split judicial nominations between the two major political parties violated the First Amendment and Adams’ freedom of association rights. The appeals court ruling came after a federal judge in Wilmington declared in December 2017 that a narrow exception in the law allowing political affiliation to be considered in filling policymaking positions does not apply to judgeships.

“Statutory interpretation, not statutory creation, is the responsibility of the judiciary and therefore, the position of judge is not a policymaking position,” Magistrate Judge Mary Pat Thynge noted.

Carney has refused to accept defeat, however, enlisting former Delaware Supreme Court Justice Randy Holland and Stanford University law professor Michael McConnell to lead the group of attorneys who appealed to the U.S. Supreme Court on his behalf.

“In this era where the independence of the judiciary is under attack, it is unfortunate that the governor seeks to uphold a provision which would announce to the world that politics comes first when selecting judges,” David Finger, an attorney representing Adams, said in an email Thursday.

Carney said in a prepared statement that the reputation of Delaware’s judiciary as “objective, stable, and nonpartisan” is due in large part to the wisdom of those who wrote the state 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,” the statement read. “I believe it’s more important now than ever to protect Delaware’s judiciary from partisan politics, and we look forward to the U.S. Supreme Court considering our petition.”

Carney’s attorneys want the Supreme Court to rule on whether the First Amendment invalidates a constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on Delaware’s Superior, Chancery and Supreme courts, with the other seats reserved for judges from affiliated with the “other major” political party. They are also asking the court to determine whether the 3rd Circuit appeals court erred in holding that the “bare majority” provision cannot be severed from the “major party” provision, even though the latter provision does not apply to Delaware’s Family Court and Court of Common Pleas, which are nonetheless subject to the “bare majority” provision.

Attorneys for the state have previously argued that the political balance requirement, which dates to 1897, is aimed at reducing the influence of political patronage in selecting judges. They also argued that Adams had not shown any actual and immediate threat of injury because of the provision, and that his complaint instead was based on “abstract, generalized grievances.”

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