Delaware's constitutional guarantees of a bipartisan judiciary fail the test of the First Amendment, the United States Court of Appeals for the Third Circuit held recently in Adams v. Governor of Delaware.

The state's Constitution limits qualification of state Supreme Court to members of the two "major" political parties. No more than a bare majority of judges associated with a party may serve. A different provision provides that no more than a bare majority of Superior Court judges may be from the same party. The result is that none but Democrats and Republicans serve the Delaware courts. A sometime-Democrat, sometime-independent lawyer James Adams challenged the status quo because as an independent he was disqualified from seeking judicial office. The Third Circuit in an opinion by Julio Fuentes rejected the governor's argument that because judges are policymakers he is free of constitutional restraints and can appoint who he chooses from among the members of the major political parties in Delaware.

The circuit panel—while hastening to laud the Delaware judiciary—disagreed, declaring that "judges are not policy makers" but are sworn to make decisions based on facts and law, not "partisan political interests." Delaware's petition for certification has been granted. The high court will decide three questions. We are most concerned with the first: "Does the First Amendment invalidate a longstanding state constitutional provision that limits 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'?"

The case will turn on the meaning of the term "policymaking." The lineage of the distinction, on which the circuit relied, is that if one is selecting employees on a partisan basis the measure must be narrowly drawn so that the least restrictive means is chosen. Political considerations are appropriate in the panel's view for assistant district attorneys, city solicitors, city managers and others. But "a judicial officer, whether appointed or elected, is not a policymaker."

The policymaker distinction is rooted in two cases: In Elrod v. Burns (1976) civil service employees of the Cook County, Illinois, Sheriff's Office challenged their dismissal when a new sheriff was elected. Writing for the court, Justice William Brennan found that the party loyalty qualification for employment burdened the challengers' freedom of association. Such party qualifications had to be "narrowly drawn" to survive First Amendment scrutiny. In Branti v. Finkel (1980) two Republican assistant public defenders were dismissed when newly elected Democrats took over the Rockland, New York, county government. The court there found that public defenders owed their duty not to the appointing political officer but to their clients. Unlike policymaking officials, public defenders could not be dismissed on partisan grounds.

We agree that the Delaware Constitution's provision impermissibly burdens freedom of association because it makes loyalty to a particular party—a major party—a qualification to hold high judicial office. But we are also of the view that the Supreme Court should tread carefully. We have in mind our customary practice for maintaining political balance, particularly in our Supreme Court where Democrats, Republicans and independents may and do serve. We have neither partisan qualifications nor statutory balance requirements.

Yet we have achieved a rough symmetry. The New Jersey system of nomination, confirmation, renomination for tenure after seven years, and confirmation absent misconduct has served us well. The system of mandatory retirement produces vacancies and the nomination system—reflecting changes in political power—has ensured that no single party dominates the judiciary. We fought, like the bar as a whole, to maintain that tradition despite challenges posed by the former governor.

Our respect for judicial independence is not naïve, however. The notion that judges are not policymakers should not be understood to mean that political and jurisprudential considerations are not appropriate in the nomination and confirmation process. The Elrod-Branti tests could easily be misunderstood to hold that partisan considerations in appointments are improper. Such overreach would bury the decision-making path to the bench, not illuminate it.

We find guidance in the approach of Seventh Circuit Judge Frank Easterbrook in Kurowski v. Krajewski (1988). The court affirmed judgment in favor of two Indiana lawyers fired by Judge Steven Krajewski because their work as public defenders did not make governmental policy.

Judge Easterbrook recognized that a "judge both makes and implements governmental policy. A judge may be suspicious of the police or sympathetic to them, stern or lenient in sentencing, and political debates rage about such questions." Therefore "holders of the appointing authority may seek to ensure that judges agree with them on important jurisprudential questions." Because judges are policymakers the Elrod-Branti test leaves nomination for tenure—a sort of hiring decision—in the hands of the governor and of the Senate. Both are empowered to decide on nominees on the basis of judicial philosophy.

On that score we emphasize the wisdom of our practice of routinely nominating for tenure and confirming competent judges regardless of their place on the ideological spectrum. The rationale is well stated by Judge Nathaniel Jones in Newman v. Voinovich (1973). He reminded then-Ohio Gov. George Voinovich that "while a judge may be a 'policymaker' in a broad sense, a judge is not a 'policymaker' for the appointing governor. Rather, the judiciary is an independent arm of the government, unconnected by oath or duty to the governor's office or political party. Once appointed, a judge does not and should not answer to a governor's directives or opinions. Therefore, the link between an appointee judge and the appointing governor is fundamentally different from the link between a governor and other gubernatorial appointees who are appointed to fulfill the political or policy objectives of a governor."