Delaware State Court Judges No Longer Required to be Major-Party Affiliated per Consent Decree

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A recent consent decree reached between the Delaware governor, and a litigant has changed the state’s top court judge requirements. The Delaware Constitution had effectively required judges on its top state courts to be either Republicans or Democrats, deemed a violation of the First Amendment of the U.S. Constitution.

U.S. District Judge Maryellen Noreika of the District of Delaware signed the consent judgment on January 30th, and Democratic Governor John Carney agreed to the change in the state’s judicial system. However, another requirement for political balance on the state’s top three courts remains.

The governor of Delaware selects judges from a list provided by a judicial nominating commission and submits his choices to the Delaware Senate. Under the state constitution’s political-balance provision, no more than a bare majority of seats on the state supreme court, superior court, and chancery court can belong to any political party. The major-party provision of the constitution required that, on those three courts, the remaining judges must belong to “the other major political party,” limiting the judgeships to Republicans or Democrats.

  

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Litigant James R. Adams, an independent, initially challenged the major-party and political-balance requirements. However, the U.S. Supreme Court ruled in December 2020 that Adams did not have standing to challenge either requirement because he did not show that he was “able and ready” to apply for a judgeship. Adams then applied for five Delaware judgeships and filed a new case challenging only the major-party requirement.

Lawyer David Finger, who represented Adams, said he was pleased with the decision. He speculated that Governor Carney wanted to keep the bare-majority requirement “to appear to the relevant constituencies like he won something.” However, a spokesperson for Carney stated that keeping the bare-majority provision “will help ensure that Delaware’s courts continue to be recognized as the preeminent court system in the country.”

In conclusion, the recent consent decree in Delaware has changed the state’s top court judge requirements. The requirement for judges on top state courts to be Republicans or Democrats will no longer be enforced, but the political balance requirement remains. The governor of Delaware still selects judges from a list provided by a judicial nominating commission and submits his choices to the Delaware Senate. The judicial system in Delaware continues to evolve and adapt to new changes.

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Delaware’s major-party requirement for judges on top state courts won’t be enforced under consent decree