Adam Liptak NYT Sidebar:
The court will decide whether to hear the case, Carney v. Adams, No. 19-309, sometime this fall.
Delaware’s Constitution says that judges affiliated with any one political party can make up no more than a “bare majority” on the state’s highest courts, with the remaining seats reserved for judges affiliated with the “other major political party.”
James R. Adams, a retired lawyer and registered independent, challenged the balancing provision, saying it violated the First Amendment.
“If Delaware had a Constitution that said, you know, a certain race or religion or gender was eliminated from being judges, everyone would say that’s obviously discrimination,” he said in a deposition. Since he was an independent, he said, he was ineligible to be considered for a seat on the state’s three highest courts.
“It’s kind of like those old discrimination cases about whether you’re in the front of the bus or the back of the bus,” Mr. Adams said. “The Delaware Constitution has decided that sometimes independents are allowed in the back of the bus and sometimes they can’t get on the bus.”
David L. Finger, a lawyer for Mr. Adams, said the balancing requirement was an insult to judicial independence. “It assumes,” he said, “that judges cannot put aside their political philosophies to decide the cases before them.”
Supreme Court precedents, the appeals court said, have drawn a line. On the one hand, politics may play no role in the hiring and firing of most government workers. On the other, it is perfectly acceptable to consider politics for those in “policymaking positions.”
In other words, it is unlawful to hire, say, prison guards or tow-truck drivers based on their political affiliations. But it is fine to consider politics in the appointment of officials who have a role in making policy like, say, prosecutors and public information officers.
Which side of the line do judges fall on?
The United States Court of Appeals for the Third Circuit, in Philadelphia, ruled for Mr. Adams, striking down the balancing requirement.