Posted: Oct. 5, 2012
By Celia Cohen
Delaware is in its 20th year of Democratic governors. It is in its 40th year of a Democratic-run Senate. Yet the judiciary is as politically balanced as ever.
The state constitution makes it so. No matter what the political affiliation of the governor nominating the judges and the senators confirming them, the constitution requires the court system to be split between Democrats and Republicans.
Cue the conspiracy theory.
There are dark mutterings in Republican legal and political circles, wondering if the Democrats are secretly scheming to take over the courts by getting Democratic lawyers to switch their registration to Republican and install them in the Republican judgeships, donkeys in elephants' clothing.
This way Jack Markell, the Democratic governor, aided by the Senate Democrats as his willing co-conspirators, could pack the courts with Democrats.
All that is lacking is a secret code name. Maybe "Jack Pack"?
Unlike most conspiracy theories, the nice thing about this one is it is going to be easy to tell or dispel -- and soon. At this very moment, the governor is awaiting recommendations from his Judicial Nominating Commission on a slew of 11 openings for judges and commissioners.
"If that is happening, it is one of the first questions that should be asked at the confirmation hearing. How long have you been a Democrat or a Republican? If we see that happening, maybe we should have some statutory language with a waiting period," said Gary Simpson, the Senate's Republican minority leader.
"It is not what was intended when that original language in the constitution was adopted."
If there is a conspiracy, the Democrats are certainly playing it cool.
"That is the first I've heard about it," said Brian Selander, the governor's chief strategy officer, whose chief strategy seems to be not to reveal too much strategy.
"The governor is going to appoint candidates who live up to the Delaware judiciary's well-earned national reputation for prudence and thoughtful decisions."
'Tis the season for conspiracy theories, anyway. When the calendar turns to October and the campaign season and Halloween converge, it is a time for politics to go bump in the night.
Amid the political vapors, all manner of speculation can flourish. Better watch out, or Markell will skip out on the governorship if he gets a second term for something that furthers his presumed national ambitions. Better watch out, or Markell will take advantage of this avalanche of judicial openings to pack the courts.
"We haven't had this many openings in a long, long time. I'm not surprised the legal community is talking about it," said Patti Blevins, the Senate's Democratic majority leader.
"Our judiciary is the best in the world. I wouldn't tinker with it at all. I'm looking forward to both Democrats and Republicans being appointed to the court."
Delaware has the only court system in the country with a requirement for political balance. This has long been regarded as a strength.
It is supposed to neutralize the politics on the judiciary. The balance has led, for example, to a Supreme Court with three Democrats and two Republicans, a Court of Chancery with three Democrats and two Republicans, and a Superior Court with 10 Republicans and nine Democrats.
Real Democrats and real Republicans.
Myron Steele, the chief justice, was a Kent County Democratic chair. Leo Strine Jr., the chancellor, was the counsel to a Democratic governor. Jim Vaughn Jr., the Superior Court president judge, is the son of a late Democratic senator. Jerry Herlihy, a Superior Court judge, was a Republican state chair. Jane Brady, also a Superior Court judge, was a Republican attorney general. And so it goes.
The judiciary has had this distinctive bipartisanship since George Read, a Federalist, was the chief justice, and William Killen, a Democrat, was the chancellor.
It would be downright un-Delawarean for a conspiracy to turn a court system with such robust political coloring into some sort of ALBINO (A Legal Bipartisanship In Name Only.)