Maintaining and sustaining an impartial and independent judiciary at all levels of the federalist system requires a tireless effort involving elected officials and the public. One major key is, of course, the constituent membership of the courts and the process that results in service on the judiciary. That effort has been acutely tested in light of recent nominees to the Supreme Court and, in more local instances, with respect to the election of judges as opposed to their appointment to the bench.
It is impossible to ignore that judicial independence and impartiality are consistent themes across political boundaries. Discussion emerges often from a cauldron of political conflict involving hot button cultural values and issues. At the center of the debate is this question: Who will guard the guardians (quis custodiaet ipsos custodies)? That is, who and how are judges to be chosen? Ironically or not, SCOTUS may be poised in the current term to comment upon its own membership at the intersection of independence, ideology, and politics.
The high court has agreed to hear a Delaware case involving statutory provisions concerning whether states may take account of the political party membership of nominees as a means to achieve some ideological balance (and by implication, a measure of independence and impartiality) in their courts.
The high court has agreed to hear a Delaware case involving statutory provisions concerning whether states may take account of the political party membership of nominees as a means to achieve some ideological balance (and by implication, a measure of independence and impartiality) in their courts. The Delaware Constitution has two provisions in this regard: one holds that judges affiliated with any one political party cannot constitute more than a bare majority in five of the state’s main courts; the second holds that only judges affiliated with one of the two major parties may serve on the Delaware Supreme Court and two other courts. Both reflect the reality of political party influence in the selection of justices.
On their faces, the two provisions have intrinsic difficulties. “Affiliation” with a political party is a somewhat slippery term since identifying the qualities or quantity of “affiliation” invites partisan political party litmus testing; equating political party affiliation as a proxy for judicial ideology or outlook is an even more slippery slope. Even assuming that the object of the constitutional provisions is to ensure a bipartisan judiciary, such is not synonymous with an independent one.
With respect to SCOTUS itself, the battle lines have formed to challenge and test the political philosophy of candidates with respect to conservative or liberal outlook and views regarding cultural value icons, e.g., abortion, voting rights, and health care. Employing political party membership or affiliation as a proxy for judicial decision making received a mortal blow in 1954 when President Eisenhower characterized his appointment of Earl Warren, former Republican governor of California, as chief justice of SCOTUS as a “mistake.”
The Delaware criteria for judicial appointment clearly disfavors “independents” or the unaffiliated, one of whom is the plaintiff in the challenge. Thus, with respect to voter registration, only Democrats and Republicans may be appointed as judges.
Voter registration in Delaware requires choosing a party, and if none is selected, the registration is deemed unaffiliated. The Delaware criteria for judicial appointment clearly disfavors “independents” or the unaffiliated, one of whom is the plaintiff in the challenge. Thus, with respect to voter registration, only Democrats and Republicans may be appointed as judges. May a state create a qualification that requires only independents? How may the appointment authority of a governor be limited where a vacancy would require a choice of one party over another to maintain the balance required by the constitution? More particularly, may a Delaware governor appoint an independent at all?
Currently, in contrast, Virginia’s Supreme Court (SCOVA) numbers seven members, six appointed by the General Assembly (GA) and one, initially appointed by then Governor Tim Kaine (2007) and later confirmed by the GA. Recently, some Democratic legislators and allies have excoriated SCOVA’s judicial integrity in an attack upon its role in the proposed independent districting commission amendment to the state constitution. The critics have alleged that SCOVA will function as a deep state Republican stronghold and its participation in drawing electoral boundaries will favor Republican interests. Virginia does not recognize voter registration by political party.
In the Commonwealth, the bipartisan divide has led some, based solely upon perceived political party attachment, to dispute the essence of judicial independence under a system where the majority political party enjoyed a virtually unrestrained hand in selecting SCOVA judges. A study by two Stanford University political science professors in 2012 sheds some light upon the issue.
Attempting to determine the partisan outlook of state supreme court justices, the investigators developed a “campaign finance score” utilizing data from campaign contributions by the judges, the partisan leanings of contributors to the judges, and, where available, the affiliation of the appointing body (legislature or governor). A score above 0 indicated a more conservative-leaning ideology, while scores below 0 were more liberal. The state Supreme Court of Virginia received a campaign finance score calculated for judges in October 2012 of 0.11, making Virginia the 18th most conservative court among the 50. Would Virginia’s judicial critics favor an academic evaluation as a test over political party affiliation?
While the most recent conflicts concerning SCOTUS nominees appear superficially to reflect political party identification, the actual debate is focused upon ideology – conservative versus liberal, with political parties functioning as combatant proxies
SCOTUS observers will closely parse the language in the Delaware case seeking to tease out the views of the justices on their philosophy related to state criteria using political party affiliation as a criterion. Any mention of the terms “conservative” or “liberal” would hint at a mirrored consideration of the membership of the Court itself. A finding that political party affiliation or membership is unconstitutional in a state opens the ideological door to appointee examinations by litmus test. Might a federal act limiting or seeking to balance the ideological spectra on the federal courts, thereby limiting the appointment authority of a president, be found by that same court to be unconstitutional? A split decision by members already characterized along the ideological arc would be intriguing. And there can be no appeal from such a finding.
For now, the political party affiliation of members of SCOVA remains subject to the waxing and waning of majority superiority in the Commonwealth’s General Assembly. If Virginia Democrats retain their present GA majority, a retirement from SCOVA is anticipated in February 2022 as a moment to exert influence on the court’s membership. Delaware may have an answer by the end of the SCOTUS term in June 2021. Whatever the content of that decision, 49 other jurisdictions will be on notice. Whether that decision implies any material element for the federal judiciary remains a mystery.