Delaware to appeal holding that its judicial appointment process violates the Constitution

Reuters has a very interesting story on the case. Briefly, in April the Third Circuit Court of Appeals held that Delaware’s arrangement for picking state judges violates the First Amendment of the U.S. Constitution because it effectively prevents anyone unaffiliated with one of the two major political parties from holding judicial office. The story explains:

Delaware’s constitution includes two provisions that, according to the governor’s petition, are intended to ensure the political independence of its state judiciary. One provision, known as the “bare majority” requirement, insists that no more than 50% of the judges of the Supreme, Superior and Chancery Courts be affiliated with either major political party. The other clause, dubbed the “major party” provision, requires that Delaware judges be affiliated with one of the two major parties in the state.

In combination, the constitutional provisions maintain the political equipoise of the Delaware courts. But last April, the 3rd U.S. Circuit Court of Appeals ruled in Adams v. Governor of Delaware that the provisions violated the First Amendment right of free association of James Adams, a retired Delaware lawyer who alleged that he could not seek a judicial appointment because he is a registered independent.

The story goes on to identify several important questions raised by Delaware’s scheme. There seems to be little dispute that it has raised the reputation of the state’s courts, but at the same time it reduces judicial appointments to mere partisan politics and undermines both judicial independence and the courts’ legitimacy.

The Supreme Court has not been shy on weighing in on state judicial selection in the past, especially where First Amendment rights are implicated. It will be interesting to see if they take this case as well.

One thought on “Delaware to appeal holding that its judicial appointment process violates the Constitution”

  1. Interesting, although unbelievable simply. Philosophically, it is extremely simple:

    The issue of the sovereignty of one state, has nothing almost to do here ( Tenth amendment) and as well, the first amendment. And we shall explain:

    The rule of law, is an absolute merit or value. This is because, of the simple fact, that rule of law, is the fundamental principle of every democracy. Not the ruling of a person or human being, but that one of the law. No one is above the law. The law is the ultimate ruler, not one person, capriciously and arbitrary ruling ( like a dictator). Everybody, including everybody, are subjected to the rule of law.

    But, the first amendment, is a relative value or merit of course. One can’t obtain in the name of the first amendment, state secrets, jeopardizing its national security for example.Or,can’t have free and wild ride, and maliciously stain the reputation of another person. But:

    Rule of law, is an absolute one. But, the most fundamental doctrine, for guarding it, is:

    Independent judiciary. Judicial review effectively. This is the main mean, for guarding the absolute merit of the rule of law. For, only independent judiciary, can guarantee, that the rule of law shall reign all over. One must petition independent court, for getting remedy, preventing arbitrary and capricious decision of one dictator alike ruler.

    So, notwithstanding that unbelievably complicated and clumsy and inappropriate appointment method of Delaware, in the philosophical debate:

    Neither the sovereign state, nor first amendment, but:

    Independent judiciary, takes over.

    Thanks

    Like

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