Delaware Gov. John Carney speaks before introducing Vice President Joe Biden during the first State Democratic dinner in Dover, Delaware, on March 16, 2019. Photo: Michelle Gustafson/Bloomberg

The U.S. Supreme Court on Friday agreed to hear Delaware Gov. John Carney's challenge to a federal appellate ruling earlier this year, which struck down provisions of the Delaware Constitution mandating political party balance on key state courts.

The high court, in a brief order, announced that it had granted certiorari in the case, which could upend Delaware's unique approach to appointing judges for some of its most influential courts. The justices directed the parties to submit briefing on the questions presented in Carney's petition, as well as the additional issue of whether the challenger, a retired attorney who said he was overlooked for judgeships, had Article III standing to bring his claims.

The lawsuit, on appeal from the U.S. Court of Appeals for the Third Circuit, has garnered significant attention in Delaware for its potential to reshape the state's judicial nomination process. But it has also exposed a split among some of the nation's circuit courts as to whether judges qualify as "policymakers," who can be appointed based, at least in part, on their political party affiliation.

The Third Circuit ruled for the first time in February that judges do not meet the narrow exception to the First Amendment's prohibition against considering party allegiance in government hiring.

The ruling struck a 120-year-old provision of the state constitution that limited judges affiliated with one of the two major political parties to no more than a "bare majority" on the state's three highest courts, with the other seats reserved for judges affiliated with the "other major political party."

Long a staple of the judicial nomination process, the mandate was widely regarded in Delaware as maintaining the courts' politically balanced structure and the state's national reputation as an objective forum for business disputes.

But a unanimous panel of the appeals court agreed with plaintiff James Adams, a registered independent, that the requirements effectively limited service on state courts to members of the Democratic and Republican parties.

"Independence, not political allegiance, is required of Delaware judges," Third Circuit Judge Julio M. Fuentes wrote in a 34-page precedential opinion.

The ruling applied to Delaware's Supreme and Chancery courts, which both play an outsize role in developing American corporate law, as well as the Superior Court, the state's main trial court. It did not affect the Family Court or Court of Common Pleas because the appeals court found that Adams lacked standing to bring those claims.

Carney, who as governor is responsible for nominating judges, argued the ruling could have "profound implications" well beyond the First State, and petitioned the high court for certiorari. His request in October won the support of former Delaware governors and two former state Supreme Court chief justices, who filed amicus briefs advocating for Carney's position.

On Friday, Carney credited the state constitution with helping to establish the judiciary's reputation as "objective, stable and nonpartisan," and said the party-balance provisions were needed to keep partisan politics out of the courts.

"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," he said in a statement.

David Finger, who represents Adams, cautioned Friday that a grant of cert did not mean the justices would rule against his client, and said he looked forward to arguing his first case before the high court.

"Because you only need four votes for cert, acceptance of a case does not necessarily predict how they're going to rule," said Finger, of Finger & Slanina in Wilmington.

"I think we're on solid ground before the Supreme Court and look forward to an exciting argument," he said.

A spokesman for Carney on Friday did not immediately respond to a request for comment.

Proponents of the party-balance system argued that the justices should bring the Third Circuit into line with the Sixth and Seventh circuits, which have both held that judges are policymakers. The Third Circuit's ruling, they said, misunderstood two Supreme Court decisions that confronted when political party affiliation is an appropriate condition of employment: Elrod v. Burns and Branti v. Finkel.

"Those decisions address when political party affiliation may be considered in selecting executive and legislative branch employees," Virginia Seitz, a partner at Sidley Austin, wrote on behalf of former Delaware Supreme Court Justices Myron Steele, a Democrat, and E. Norman Veasey, a Republican.

"They do not address the relevant constitutional history and tradition of judicial appointments, which reflect the judgment that judges should be accountable to the people (in varying degrees depending on the mode of selection) as well as independent in the execution of their role. Nothing in Elrod and Branti suggests that that judgment and longstanding tradition violate the First Amendment," she said.

Seitz herself is the sister of Collins J. Seitz Jr., the current chief justice of the Delaware Supreme Court, and the daughter of Collins J. Seitz, who helmed the Chancery Court from 1946 to 1966 and served as a justice of the state Supreme Court before its official founding by constitutional amendment in 1951.

In a separate filing, Theodore Mirvis of Wachtell, Lipton, Rosen & Katz argued on behalf of Delaware's five most recent former governors that the Third Circuit made an "unprecedented expansion" of the high court's anti-patronage decisions and created an unnecessary rift with the other circuit courts.

"The circuit split also leaves an intolerable cloud of uncertainty for Delaware and other states that rely on political balance in their judicial selection processes, including 15 other states that use political balancing in forming their judicial nominating commissions," Mirvis wrote in his brief.

 

Read More:

Case Over Delaware's Party-Balance Rule Could Spark SCOTUS Fight on Whether Judges Are Policymakers

Delaware Gov. to Seek SCOTUS Review of Decision Tossing Party-Balance Mandate on State Courts

Third Circuit Stands By Decision Striking Down Del. Party-Balance Requirement in Key Court Nominations