Lawyers for the Carney administration are arguing in federal court that Gov. John Carney has the discretion to consider party affiliation in judicial nominations, despite a federal court ruling that struck down a provision of the Delaware Constitution that requires strict political balance among the state’s judges.
Attorneys for the governor responded on Wednesday to a motion from a local attorney asking a judge to hold Carney in contempt for ignoring a Dec. 6, 2017, ruling from U.S. Chief Magistrate Judge Mary Pat Thynge of the District of Delaware, which found the 120-year-old requirement violated the First Amendment by restricting government employment based on party affiliation.
David C. McBride, an attorney for Carney, said in a court filing that nothing in Thynge’s memorandum opinion addressed other provisions preventing one political party from being represented by more than a “bare majority” of the judges on Delaware’s courts. And he argued that Carney could still weigh a candidate’s party association on a discretionary basis.
Carney has asked Thynge for clarification on both aspects of the ruling.
“The court has not entered an order specifically directing defendant to do or refrain from doing anything, as required for a contempt finding,” said McBride, a partner with Young Conaway Stargatt & Taylor. “Given the absence of such an order, plaintiff’s motion presents no legal basis for a contempt finding, and it should be denied.”
A spokesman for the governor did not respond Thursday to a request for comment.
James R. Adams, a registered independent who successfully challenged the party-balance mandate last year, argued that a Feb. 19 posting for a Superior Court judgeship in Sussex County violated Thynge’s ruling by indicating the governor’s “preference” to nominate a Democrat to fill the vacancy.
“By announcing at the outset that he was going to select a candidate of a particular political party, Gov. Carney conceded that political affiliation was and is a substantial factor in his appointment decisions,” Adams’ attorney, David L. Finger, wrote in a Feb. 21 filing.
Finger, of Finger & Slanina, said that Carney lacked the discretion to even consider party affiliation, which, he said, Carney had made a “controlling” factor in the nominating process.
“Either you can do it or you can’t do it,” Finger said. When asked if Thynge’s ruling was clear on that point, he responded: “Yes.”
Carney’s attorneys have appealed the December ruling, but the U.S. Court of Appeals for the Third Circuit has stayed the case, pending a resolution to Carney’s motion for reconsideration.
In Wednesday’s filing, McBride said Carney would oppose any injunction once the reconsideration motion is decided, and he would ask Thynge to stay the case while it is on appeal, McBride said.
Carney’s attorneys cited a “pressing need” to fill state court vacancies, including at least four this year. The governor, they said, has acted in good faith to meet his obligations under state and federal constitutional laws in trying to fill recent judicial openings.
“Absent a stay of the court’s ruling, the impact of any judicial appointments filled by the governor prior to the resolution of this appeal will be felt by the public, and could disrupt the bipartisan nature of the Delaware judiciary, for years to come,” McBride wrote.
The case is captioned Adams v. Carney.