Delaware is justly famous for the high quality of its judges and courts. Our state court system consistently ranks atop most reputable surveys of lawyers and businesses in terms of the administration of justice, the quality and fairness of rulings, promptness, and efficiency. Indeed, the high reputation of our judicial branch is a major reason for Delaware’s unparalleled success in the marketplace of entity formations.
Delaware takes pride in the careful merit system pursuant to which its judges are selected. We have no unseemly judicial elections here: no wads of campaign cash, no special-interest attack ads. Application forms are thorough and detailed. For the principal courts, a Judicial Nominating Commission consisting of lawyers and lay persons interviews promising candidates and makes recommendations to the Governor – usually three names per vacancy.
To top it off, Article IV, Section 3 of the Delaware Constitution – which I will call the “Representation Provision” — requires that there be a political balance within each Constitutional court and across all such courts. If a court has an even number of judges, there has to be equal representation of Republicans and Democrats – or, as the Constitution of 1897 puts it, “major political parties.” If there is an odd number, the difference in party alignment can be no greater than one. Under the Representation Provision, a Republican governor may have to appoint a Democratic judge for a particular seat, and vice versa. As a case in point, we have an incoming Democratic Chancellor and a new Republican Vice Chancellor.
Although the current system has produced high-quality judges in our state courts, the Representation Provision strikes me as anachronistic. For one thing, it effectively disqualifies political independents, or registered “declines,” from applying for service on the bench. The language of the Representation Provision with respect to the Supreme Court is clear: “[T]hree of the five Justices of the Supreme Court in office at the same time shall be of one major political party, and two of said Justices shall be of the other major political party.” While the language regarding the four other Constitutional courts is perhaps a bit muddier, the better interpretation likely excludes independents.
As a corollary, in Delaware, as in the nation generally, the “major political parties” are losing ground to independents. Increasing numbers of voters find the Democratic and Republican parties to be overly ideological, irrelevant or unresponsive to their needs. Why should the pool of qualified judicial candidates continue to be artificially constrained by the Representation Provision? That is a far greater disadvantage than the remote prospect that, at some future date, Delaware may have more than two “major political parties.”
Second, the Representation Provision reduces the discretion of the Governor in appointing qualified judges. A given seat may have to be filled by a Democrat, when better qualified Republicans may be available. Or vice versa. Why shouldn’t the best judge be appointed, regardless of party affiliation?
Third, to those who might contend that repeal of the Representation Provision would unduly politicize the selection process, I have several rejoinders. The twelve-year terms of Delaware judges make it difficult to “pack” a court with political cronies, even to the extent such ”cronies” may survive the rigorous merit selection process. More to the point, Delaware governors and the General Assembly realize what an asset we have in a qualified bench and courts that are second to none. The one instance that I can recall where a Delaware judicial candidate received more than one or two negative confirmation votes involved a clash of personalities, not a dearth of intellect or integrity on the part of the candidate. Finally, politics has always been part of the Delaware judicial selection process, at least at the margin. If you want to be a judge, it helps to have been a party activist, a major fundraiser, a governor’s counsel, or an attorney for the Genera l Assembly.
Given the difficulty of amending the Constitution and the success of the current system, I hesitate to propose a major change. Yet I believe that the Representation Provision has outlived its usefulness, and thought should be given to its eventual repeal.