Posted: Nov. 15, 2010
FIRST IN JUDGING THE JUDGES
By Celia Cohen
Delaware loves firsts. There are the big ones everybody knows -- the first state to ratify the Constitution and the first state as a home for corporations.
Not quite as well-known is Delaware's reputation as the first state for judging the judges, its way for setting out how judges get on the bench and how they stay there.
No running for election or standing for retention. No flood of campaign contributions from self-interested quarters with business before the courts. Nothing like what happened Election Day in Iowa, where three Supreme Court justices were un-benched after a ruling in favor of gay marriage.
Instead, state judges here are appointed by the governor and confirmed by the state Senate. In addition, in a requirement utterly unique among the 50 states, the courts must have political balance, counterweights of Democratic judges and Republican judges.
It put the mood somewhere between self-congratulatory and relieved when about 140 members of the bench and bar gathered Friday evening at the DuPont Country Club in Rockland to recognize what the state does to preserve and protect an independent judiciary.
The event was hosted principally by the American Judicature Society, a non-profit organization that supports the merit-based selection of judges and also finds itself in the awkward position of being headquartered in Iowa, where the Supreme Court justices were just kicked out of office.
It did not hurt Delaware's chances to be singled out for appreciation that Bill Johnston, a Wilmington lawyer with Young Conaway Stargatt & Taylor, is the current president of the American Judicature Society. Not to mention his special relationship with a certain judge.
"The end result, I submit, is the best judiciary in the nation. I assure you I am entirely objective in this regard. It makes no difference whatsoever that I am married to a Delaware judge," quipped Johnston, whose wife is Superior Court Judge Mary Johnston.
Pete du Pont, the Republican governor from 1977 to 1985, got to give the keynote speech because of what he did to add a layer further insulating judges from politics.
He created the Judicial Nominating Commission, which screens judicial applicants and forwards its recommendations, typically three candidates, to the governor, who must choose a nominee from the list or request a new one. Every governor afterwards has continued the commission.
From du Pont's perspective, it was better than having senators give him slips of paper with the name of the next judge they wanted to see.
Du Pont did manage to inject the one odd note into the ceremonies, as he curiously trumpeted the Republican Party's nationwide gains in the election. It prompted one lawyer afterwards to make a facetious reference about attending a "Republican rally."
Not that Delaware's system is entirely politics-free, either.
It was not exactly a coincidence that Jim Vaughn Jr., whose father was a state senator, was named to the Superior Court in 1998 when Tom Carper, then the Democratic governor, was looking for votes to put Leo Strine Jr., his gubernatorial counsel, on the Court of Chancery.
Who could forget when the Superior Court became an escape hatch? Ruth Ann Minner, then the Democratic governor, provided a soft landing there for Jane Brady, then the Republican attorney general. Minner got to appoint a temporary attorney general of her own choosing, and Brady got out of a tough re-election campaign against Beau Biden, the Democrat who did win in 2006.
Never mind. The judicial selection system also led to a moment that Jim Soles, the late political science professor from the University of Delaware, considered one of the finest in state history -- when Carper as the Democratic governor decided a Republican should lead the Court of Chancery, the world-renowned forum for business law.
Carper made Bill Chandler the chancellor. It says something that the decision was not regarded as particularly surprising. Nor was it surprising that Soles would appear so personally proud of it, not when Carper had been his campaign treasurer for his Democratic congressional candidacy in 1974 and Chandler was a former student. This is Delaware, after all.