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Supreme Court watchers eye Gov. Carney's appeal of judicial balance ruling

Delaware Public Media

Some members of Delaware’s legal community are closely watching Gov. John Carney’s petition to the U.S. Supreme Court.

Carney is asking the Supreme Court to overrule an appeals court decision striking down the judicial balance provisions in the Delaware Constitution.

The provisions require judges of the state’s highest courts to be either Democrats or Republicans and members of either party can have no more than a bare majority on the courts.

Widener University Delaware Law School Dean Rod Smolla said he believes there’s a good chance the court will take the case. He is filing an amicus brief with the court on behalf of professors across the country.

“It’s a pretty interesting First Amendment problem that has never been resolved," he said. "Delaware has its system requiring political balance on the courts to try to eliminate politics from the judicial system.”

He supports Carney’s argument that judges are policymakers and therefore Delaware governors can take political affiliation into consideration when making judicial nominations.

“In today’s society, judges will inevitably have cases in front of them that pose issues of enormously important constitutional policy,” he said.

The U.S. Court of Appeals for the Third Circuit ruled the judicial balance provisions violate the First Amendment. Smolla acknowledges the mandates disqualify candidates who don’t identify as a Democrat or Republican.

Carney’s petition to the Supreme Court argues the Sixth and Seventh Circuits agree with the view that judges are policymakers.

The governor’s office has spent more than $500,000 on outside counsel as of the end of August. A spokesman for Carney said legal work on the Supreme Court petition is being done pro bono.

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