Virginia Seitz of Sidley Austin. Photo: Diego M. Radzinschi / ALM

Former Delaware governors and two former state Supreme Court chief justices are urging the U.S. Supreme Court to review a federal appellate court decision that ruled unconstitutional a judicial appointment process that effectively limits service on the bench to Republicans and Democrats.

The Delaware governor, John Carney, is challenging the ruling from the U.S. Court of Appeals for the Third Circuit, and this week he won support in friend-of-the-court briefs.

The amicus brief on behalf of the former governors, filed by Theodore Mirvis of Wachtell, Lipton, Rosen & Katz, and one on behalf of two former chief justices, represented by Sidley Austin's Virginia Seitz, aim to bolster Carney's argument that the state constitution's "political balance" requirements for selection of judges does not violate the First Amendment.

"The means Delaware has chosen to achieve a politically balanced judiciary—the selection of judges based on party affiliation—is common practice in most other states and in the federal system," Seitz wrote. "The decision here is vitally important because it has implications for, and indeed opens to question, all such selection processes."

A unanimous panel of the appellate court in April ruled that Delaware's judicial selection process violates the First Amendment by prohibiting the governor from appointing a judge due to his or her "affiliation with a particular political party."

The political balance requirements limit judges affiliated with any one political party 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."

Delaware lawyer James Adams, an Independent, argued the requirements effectively limit service on state courts to members of the Democratic and Republican parties. Those requirements, he argued, restrict a judicial candidate's First Amendment freedom to associate with the political party of their choice.

Central to the Third Circuit decision were two U.S. Supreme Court decisions that confronted when political party affiliation is an appropriate condition of employment and an exception for "policymakers": Elrod v. Burns and Branti v. Finkel.

"The purpose of the policymaking exception [to Elrod and Branti] is to ensure that elected officials may put in place loyal employees who will not undercut or obstruct the new administration," Judge Julio Fuentes of the U.S. Court of Appeals for the Third Circuit said in February's ruling. "Judges simply do not fit this description. To the extent that Delaware judges 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."

Two former Delaware chief justices—Myron Steele, a Democrat, and E. Norman Veasey, a Republican—contend in their amicus brief that the Third Circuit misunderstood Elrod and Branti.

"Those decisions address when political party affiliation may be considered in selecting executive and legislative branch employees," Seitz wrote in the brief on behalf of Steele and Veasey. "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."

Wachtell's Mirvis, on behalf of the five most recent former governors, argued the appellate court made an "unprecedented expansion" of the high court's anti-patronage decisions and created a circuit split.

"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 fifteen other states that use political balancing in forming their judicial nominating commissions," Mirvis wrote in his brief.

Adams is represented by David Finger of Wilmington's Slanina & Finger. Finger opened his brief in the U.S. Supreme Court—filed this week—with quotes by the late Justice Antonin Scalia and Justice Neil Gorsuch. The brief urged the justices not to disturb the Third Circuit's ruling.

Neil Gorsuch testifies at his confirmation hearing in March 2017. Photo: Diego M. Radzinschi/ NLJ

Gorsuch was quoted from confirmation hearing, at which the nominee claimed: "There is no such thing as a Republican judge or a Democratic judge. We just have judges in this country."

The Third Circuit, Finger argued, did not misunderstand the Elrod-Branti decisions. The governor only disagrees with the appellate court's application of those principles, wrote Finger.

"The issue of political balance on Delaware's courts was decided by the Third Circuit on state law grounds," Finger's brief said. "Matters of state law are not a proper basis to grant a writ of certiorari."

Adams is supported in the high court by Joel Friedlander of Wilmington's Friedlander & Gorris. Friedlander, who wrote a law review article on the Delaware constitution's requirements, said in his amicus brief: "The major party provision operates as a bipartisan lockup of Delaware's judiciary. A small party cannot hope to get any of its members appointed to the judiciary, even if the small party is allied with a major party. This is a severe burden on associational rights."

Carney is represented pro bono in the high court by Michael McConnell, senior of counsel at Wilson Sonsini Goodrich & Rosati. McConnell, a former judge on the Tenth Circuit, leads the Constitutional Law Center at Stanford Law School.