Delaware’s Weird—and Constitutionally Suspect—Approach to Judicial Independence
A judge, the old saying goes, is a lawyer who knew a politician. Whether judges are nominated by the executive or elected by voters or legislators, politics plays an overwhelming role in the process.
But can a state’s constitution mandate “partisan balance” on the bench—and exclude from judgeships anyone who isn’t either a Democrat or a Republican?
The Supreme Court was—before the coronavirus hit—scheduled to take up that question this past week. Now we don’t know when or how the oral argument will be held. Carney v. Adams, a case from Delaware, has attracted little public attention, but it has attracted a set of high-powered First Amendment advocates. To resolve it, the Court must balance the interests of officeholders who wish to make political supporters into judges, of individuals who wish to serve on courts, and of citizens who want to safeguard the independence of the bench.
[Garrett Epps: Trump is at war with the whole idea of an independent judiciary]
The case is doubly important because the courts involved are Delaware’s. The tiny state has fewer than 1 million inhabitants, but 1.4 million registered corporations, including two-thirds of the 500 companies. Essentially,, explained to me in an email.
