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There are some people, most of them are not lawyers but still, who think that having some kind of partisan balance should be a requirement for our appellate courts.
I appreciate the thought. No matters what Chief Justice John Roberts tries to sell you on, there are Republican judges, there are Democrat judges, and the appearance of impartiality has been greatly diminished because of it. You can image a court looking more fair if it was required to have a balance of judges from each party.
But looks can be deceiving. What makes a “conservative” judge or a “progressive” judge goes beyond the mere politics of the moment. Cases don’t always track with what we think of as Democrat or Republican positions. For instance, while the Supreme Court and many district courts have a “balance” of Republicans and Democrats, most of judges are former prosecutors. And that’s as important of an “imbalance” as anything.
Moreover, judges change, and parties change. Justice John Paul Stevens, who is still not dead by the way, was nominated by a Republican, and barely acted like it for even a day. Burned by Stevens and especially Justice David Souter, conservatives have gone out of their way to find the most partisan nominees possible, a thought that led them to nominating Justice Brett. But, as the Republican party lurches further and further towards an authoritarian view of executive authority, who knows if they’ll be able to keep some of their “Republican” justices in line. Chief Justice John Roberts and even Justice Neil Gorsuch might wind up letting the jackboots down, someday.
The final problem with mandating partisan balance is that it ices out judges who are not affiliated with either major political party. No, this is not my plea for Howard Schultz as a Supreme Court justice. It’s just me acknowledging the First Amendment right judges have to not choose a side.
It’s under that First Amendment logic that the Third Circuit Court of Appeals struck down a Delaware state constitution requirement to have party balance on its highest state courts.
Yes, that includes the Delaware Court of Chancery, were all the corporate loopholes are made.
Delaware lawyer James Adams objected to the partisan requirement. He calls himself a Bernie Sanders-style independent, and felt there was no point for him to apply for a judgeship because he wasn’t a member of either political party. The Third Circuit held that he had standing to sue, and that his First Amendment rights were violated.
It’s the right decision, though even the Third Circuit recognized why it’s a bit of a disappointing one:
Judge Julio Fuentes wrote the opinion for the three-judge panel. Fuentes and a second panel judge both joined a concurrence by Judge Theodore McKee.
“All of us have a keen understanding of, and appreciation for, the fact that the provisions we strike down today were enacted to ensure selection of a judiciary whose political balance would serve notice that judicial decisions were devoid of politics and political motivations,” McKee wrote.
People should feel like the courts are above politics. And I’d like to tell you that they are. But… this ain’t no fairy tale. Courts are partisan operations. Requiring them to be balanced partisan operations is an ineffective workaround.
3rd Circuit strikes down requirement for Democratic and Republican balance on top courts [ABA Journal]
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.
Third Circuit Strikes Down Partisan Balance Requirement curated from Above the Law
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