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We were gratified to read the Third Circuit's precedential opinion filed on Feb. 5 in Adams v. Governor of Delaware. The court held that “portions of the Delaware constitution that limit [plaintiff's] ability to apply for a judicial position while associating with the political party of his choice violate his First Amendment rights” and that his non-registration as a Democrat or Republican could not preclude his eligibility for appointment to the state court.

Plaintiff Adams was a member of the Delaware bar who was not registered with either major political party since 2017. A provision of the Delaware Constitution required registration as a condition of judicial appointment, but Adams did not do so because of his independent political status.

Article IV, section 3 of the Delaware Constitution requires that three of the five justices of its Supreme Court be members of one major political party and two of the other, and it also requires not more than half of the members of the Superior Court and Chancery Court shall be of one of the two political parties and the balance members “of the other major political party.” The provision requires no more than one-half or one-half plus one members of the Family Court and Court of Common Pleas (depending on the number of judgeships) to be of one party, but did not require the balance to be members of the other. As the court's opinion put it, in practice “most courts must be filled with Democrats and Republicans exclusively.”

Delaware has a judicial nominating commission. When a judicial position becomes available, the commission gives notice of the vacancy to members of the party a registered member of which would be eligible to fill.

Judge Fuentes' unanimous opinion found that Adams had standing to assert his challenge with respect to seats on the Supreme, Superior and Chancery courts (but not the Family Court and Court of Common Pleas as a result of “the bare majority component” because “it does not create a floor” requiring the other to have a certain number or balance of the seats). It rejected the governor's contention that party affiliation could be a factor in a judicial nomination process because judges are “policymakers” and that even if they are not, there was a legitimate state interest in maintaining a “political balance” on the courts.

In evaluating the challenge to Delaware's process in light of the First Amendment's guarantee of freedom of association, the court concluded that the Delaware constitutional provision “illustrates that political loyalty is not an appropriate job requirement for Delaware judges” and stated that the governor could not “credibly argue that he must be free to follow a rule excluding those who do not belong to the two major parties…” The panel also found that “while judges clearly play a significant role in Delaware, that does not make the judicial position a political role tied to the will of the governor and his political preferences. As such, the policymaking exception does not apply to members of the judicial branch.” The court also disagreed with opinions of other circuits stating “there can be no serious question that judicial candidates of different political parties can effectively serve as state judges.” The court further found that the need for the balance of political concerns “are less compelling with respect to judges, who are 'not elected [or appointed] to represent a particular viewpoint' and instead are required to 'exercise [their] own independent authority to make decisions that uphold and apply the law fairly and impartially.'” In sum, the court found that plaintiff had shown that “his freedom of association rights were violated by the political balance requirement that prevented his application to the Supreme Court, Superior Court and Chancery Court” and therefore affirmed the judgment of the district court.

In a concurring opinion joined in by his colleagues, Judge McKee addressed his personal experience as a state court judge in Philadelphia in a system involving partisan political elections. While noting the “laudatory purpose” of “achieving a judicial system that is as fair in fact as it is in appearance,” he believed that Delaware's constitutional provisions were not sufficiently “tailored” to achieve that objective, and that the selection system violated the First Amendment right of association. He also emphasized the “potential damage to the image of the judiciary …“ and the extent to which partisan politics “can undermine the public's faith in the judges who are elected.”

In New Jersey, the tradition of political balance on the courts has been maintained since 1947 without a written constitutional provision. The four-three balance on our Supreme Court was changed when Justice Jaynee LaVecchia, an independent, was appointed to the court in 2000 and, of course, that fact was considered with respect to the appointment of subsequent members of the court when a party would not have at least three members. We believe in the benefits of a balanced court and the perception that there is no domination by one partisan political view or the other. However, we wholeheartedly support the opinion of the Third Circuit that partisan politics or membership in a partisan political party should not be a requirement for appointment to the bench or keep qualified people from being eligible. The image of justice is best maintained as in New Jersey, by making appointments based on merit alone and adherence to judicial conduct in which partisan politics has no place. Stated differently, judges should be “above politics” and the judiciary should be so perceived.

The U.S. Supreme Court may be asked to resolve the split among the circuits which have considered the issue, and we hope that it affirms the judgment of the Third Circuit in Adams.