John C. Carney Jr., D-Delaware. Credit: Wikimedia Commons

A federal judge on Wednesday ruled that a provision of the Delaware Constitution requiring political balance on the state’s courts is unconstitutional.

In a 15-page memorandum opinion, U.S. Magistrate Chief Judge Mary Pat Thynge of the District of Delaware granted summary judgment to James R. Adams, a New Castle County lawyer who argued the 120-year-old requirement violated the First Amendment by restricting government employment based on party affiliation.

Attorneys for Gov. John Carney, who is responsible for nominating judges, argued the political balancing requirement for judges met a narrow exception that allows party affiliation to be taken into account when considering applicants for policymaking positions.

Thynge, however, held that the judiciary is not included under the policymaking exception because judges are tasked with interpreting statute, not creating it.

“The constitution of the state of Delaware violates the First Amendment by placing a restriction on governmental employment based on political affiliation in the Delaware judiciary,” Thynge wrote. “The narrow exception of political affiliation does not apply because the role of the judiciary is to interpret statutory intent and not to enact or amend it.”

The Delaware Department of Justice, which represents Carney in the case, declined to comment. A spokesman for the governor said, “We respect the court’s decision, and continue to review the decision and its potential implications.”

He did not say whether the administration will appeal.

Adams, a registered independent, said he’s been prevented in the past from applying for judgeships because of the constitutional mandate that judicial seats be split between Republicans and Democrats.

Proponents of the provision—codified in Article IV, Section 3 of the state constitution—have said it safeguards a fair, independent and impartial judiciary that attracts talent to serve in its ranks. But Adams and others have argued the mandate improperly boxes out independents and creates the impression the state’s judiciary is tinged with political bias.

David L. Finger, who represents Adams, said the ruling will keep the courts independent of politics and give governors a wider pool of judicial applicants to choose from during the nominating process. The ruling, he said, would not have any retroactive application or impact current vacancies.

“This opens the way for people of all political affiliations to be judges,” said Finger, of Wilmington firm Finger & Slanina.

“The last thing you want is judges selected because of some perceived bias based on their political affiliation,” he said.

Carney is represented by Justice Department attorneys Ryan Patrick Connell and Christian D. Wright, of the department’s Civil Division.

The case is captioned Adams v. Carney.