The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Delaware Constitution provides for judges appointed by the governor with the advice and consent of the state senate, but with limitations (first added in 1897) aimed at political party balance:
First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.
Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party. [Similar provisions apply to the Family Court and the Court of Common Pleas. -EV]
Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.
Is this constitutional? The First Amendment generally bars political party discrimination in ordinary government employment but allows it in certain important positions, especially policymaking ones. (For instance, a governor certainly can select his cabinet members from only his own party, or, if he wants to, can deliberately try to get political balance.) But does an exception apply to a judge? On Wednesday, a federal district court held that the party balance requirement is unconstitutional:
Article IV, § 3 of the Constitution of the State of Delaware violates the First Amendment by placing a restriction on governmental employment based on political affiliation in the Delaware judiciary. The narrow exception of political affiliation does not apply because the role of the judiciary is to interpret statutory intent and not to enact or amend it. Precedent relied upon by defendant is highly distinguishable and not applicable to the current situation. Further, the Delaware Judges' Code of Judicial Conduct clearly indicates that political affiliation is not a valued trait of an effective judiciary.
Here is more of the court's reasoning; note that it doesn't specifically focus on the law's categorical exclusion of everyone who is politically independent, or adheres to a third party (which might have been a separate objection):
The United States Supreme Court has established that political belief and association are at the core of First Amendment protections. Governmental employees can not be terminated or asked to relinquish their "right to political association at the price of holding a job." "Patronage … to the extent that it compels or restrains belief and association, is inimical to the process which undergirds our system of government and is at war with the deeper traditions of democracy embodied in the First Amendment." This right of political affiliation has been expanded to government employees regarding their promotion, transfer, and hiring.
The "prohibition on encroachment of First Amendment protections is not absolute," and an exception is recognized, which limits patronage dismissals to "policymaking positions," and requires an analysis of the nature of the employee's responsibilities. The United States Court of Appeals for the Third Circuit has found "a question relevant in all cases is whether the employee has meaningful input into decision making concerning the nature and scope of a major government program." A "policymaking position" is a narrow exception applied when "the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved."
The Court has recognized that "it is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered." In Branti v. Finkel, the United States Supreme Court held that the position of Assistant Public Defender was not entitled to the "policymaker" exception. It found that the factors to be considered in determining whether a position is a policymaking position are whether the position is simply clerical, nondiscretionary or technical in nature, whether the employee "participates in Council discussions, or other meetings, whether the employee prepares budgets, or has authority to hire or fire employees, the salary of the employee, and the employee's power to control others and to speak in the name of policymakers." A difference in political affiliation is only a proper factor in making employee decisions if it is highly likely "to cause an official to be ineffective in carrying out the duties and responsibilities of the office." Whether a position involves policy-making is a question of law.
Defendant contends that the role of the judiciary falls within the policymaker exception. … Defendant's argument rests heavily upon the holdings by other circuit courts outside the Third Circuit, and the United States Supreme Court's holding in Gregory v. Ashcroft. Plaintiff contends that the role of the judiciary is not a policymaking position and rests his argument upon a separation of powers, the role of the judiciary, and the Delaware Judges' Code of Judicial Conduct.
The judiciary, although a very important role, is not a policymaking position. A judge does not provide "meaningful input into decision making concerning the nature and scope of a major government program." To the contrary a judge's role is "to apply, not amend, the work of the People's representatives." The court may not speak on policymakers behalf, sit in on Congressional discussions, or participate in policymaking meetings. The role of the judiciary is not to "hypothesize independently" legislative decision and intent. "Matters of practical judgment and empirical calculation are for Congress" and the judiciary has "no basis to question their detail beyond the evident consistency and substantiality." Statutory interpretation, not statutory creation, is the responsibility of the judiciary and therefore, the position of judge is not a policymaking position.
Cases from other circuits, on which defendant relies, are distinguishable. [The cases] addressed situations which political affiliation could be considered, but was not constitutionally mandated. Neither case dealt with a constitutional provision requiring a political affiliation evaluation, nor a complete bar on hiring individuals with minority political party beliefs.
In addition, the Court in Gregory addressed the issue of interpreting legislative intent of an exception as it applied to the Age Discrimination in Employment Act for positions "on the policymaking level." The Court addressed whether Congress intended the judiciary be included in the exception, and whether a Missouri law mandating that members of the judiciary retire at the age seventy was permissible under the Age Discrimination in Employment Act.
The Court specifically did not decide the issue of whether the judiciary was a policymaker, and based its holding on the rationale that "people … have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age. The people may therefore wish to replace some older judges." Thus, the phrase "on the policymaking level" is not the equivalent of a "policymaking" position, on which employment decisions based on political affiliation may be made.
Delaware requirements are clear, that "[a] judge should be unswayed by partisan interest" and "family, social, or other relationships" should not influence their conduct or judgment." In particular, Canon Four of the Delaware Judges' Code of Judicial Conduct specifically addresses that the judiciary must refrain from political activity. A judge may not act as a "leader or hold any office in a political organization," make speeches for political organizations or candidates, or "engage in any other political activity." The Delaware Judicial Code clearly pronounces that political affiliation should not affect the position.
Political affiliation is not important to the effective performance of a Delaware judge's duties. A Delaware judge may not participate in political activities, hold any office in a political organization, or allow political affiliation to influence his judgment on the bench. Since political affiliation in Delaware cannot "cause an official to be ineffective in carrying out the duties and responsibilities of the office," it does not meet the standard for a "policymaking position."