The Lawletter Vol 44 No 4
In Delaware, a judicial nominating commission, with members balanced between the two major political parties, provides recommended candidates to the Governor for the appointment of judges to the state courts. When a position becomes open, the commission gives public notice of the position, including the major party membership required for nomination to a particular judgeship. The party membership requirement has its origins in article IV, § 3 of the Delaware Constitution, which effectively excludes all candidates for state judge positions who are not members of either the Republican or the Democratic Party.
A Delaware resident and member of the Delaware Bar considered applying to become a state judge, but in the end, he did not apply because as an independent politically, his application would have been futile in light of the constitutional provision. Nonetheless, first a United States district court and then a federal appellate court found that he had standing to challenge the limitation on judicial candidates to the two major political parties for the Delaware Supreme Court, the Superior Court, and the Chancery Court on the ground that such exclusion of persons not members of those parties was an unjustified infringement on the plaintiff's First Amendment freedom of association. Adams v. Governor of Del., No. 18-1045, 2019 WL 1549857 (3d Cir. Apr. 10, 2019).
The Governor offered two separate arguments to justify the practice of requiring applicants for judicial positions to be Democrats or Republicans. First, he contended that state court judges are "policymakers," such that it is permissible under U.S. Supreme Court precedents on political patronage in government jobs to hire and fire them without restraint based on their political affiliation. Second, even assuming that the judges are not policymakers, the Governor argued that Delaware has an interest in achieving and maintaining political balance that justifies the challenged constitutional requirement of major political party membership. The Third Circuit accepted neither defense of the provision.
Concerning the "judges as policymakers" argument, in determining whether a public employee's job responsibilities would make political party allegiance an appropriate condition of employment under the First Amendment, a court may consider whether the employee has duties that are nondiscretionary or nontechnical, participates in discussions or other meetings, prepares budgets, possesses the authority to hire or fire other employees, has a high salary, retains power over others, and can speak in the name of policymakers. While some of these characteristics may be descriptive of judges, on the whole a judicial officer, whether appointed or elected, is not a “policymaker,” and, thus, the First Amendment bars political party allegiance from being an appropriate condition of employment under the First Amendment. To the extent that judges can be said to create policy, they do so by deciding individual cases and controversies before them, not by creating partisan agendas that reflect the interests of the parties to which they belong. The important role judges play in Delaware does not transform them into political actors. When judges interpret statutes, sentence criminal defendants, and craft the common law, in a sense they may be making policy, and they exercise significant discretion, but the question before the court was not whether judges make policy but, rather, whether they make policies that necessarily reflect the political will and partisan goals of the party in power. Id. at *9-10.
The Governor’s second argument, that even if state judges are not policymakers, their political affiliation is still an appropriate condition of state employment, fared no better. The Supreme Court has determined that politically motivated employment practices can be constitutional if they are narrowly tailored to further vital government interests. The governmental interest put forward by the Governor was achieving and maintaining a political balance in the state judiciary. It is true, as the Governor pointed out, that some courts have upheld political balance statutes governing elections for a state’s boards of education and for a city council, and that several federal administrative agencies use some form of political balance requirement for decisionmaking bodies. But unlike elected officials and agency representatives who explicitly make policy, judges perform purely judicial functions. Further, it was difficult for the court to see how the logic of political balance and minority representation extends from multimember deliberative bodies, like a school board, to Delaware’s judiciary, "most of whom sit alone." Id. at *11.
In any event, the Third Circuit's quarrel with the political balance argument was not that the governmental interest was not defensible. Rather, Delaware's practice of excluding political independents and third-party individuals from judicial employment was not narrowly tailored to the state's interest in political balance. The state had not shown that the goals of political balance could not be realized without the challenged provision's highly restrictive nature. As this was the unmet burden of the Governor, the court did not venture to suggest other, more narrowly tailored, measures for achieving political balance in the judiciary that might have survived scrutiny under the First Amendment.