political balance requirements of the dollar constitution have it have a centrally two components one it is called the bear it we call the bare majority component which requires that no political party can have more than a bare majority of members of the court that's been in the dollar constitution for over one hundred years the second provision is a provision that requires with respect to certain of the courts but not all of the courts that the members of the court be members of one of the two major political yet to find it's not defined in the constitution your honor as a funder delaware law well in the in in title i believe it's title fifteen that deals with delaware election law it defines major  in delaware a few people on the block could be a major party but very they are exactly it is but i think your honor the way that government has interpreted the provision of the strictly democrat republican split well it happens to be the democrats and republicans are the two largest parties but they've interpreted that the the way the provisions are written it says that no party shall have more than a bare majority when it says and the other members of the court will be of the other party which seems to suggest that what the constitutional drafters intended was that major political parties met the two largest parties he says jake is problematic  republicans and democrats if that it wouldn't matter in terms of a constitutional nel says well i think it i think it may matter because i think that the point of the provision and point of of saying that you must be a member of one of the two major political parties is to try to assure at least with the three courts that are impacted by that provision that the members of the court reflect the political mainstream of delaware now that doesn't necessarily  will not be in the case well i think that what we are we're we're attempting to address when we address the purposes for these provisions is the question which we actually don't think the court needs to reach is whether these provisions are standing with respect to an independent individual pursuing a position on a court where the individuals have to be from one of the major political parties not pretentious standing in this case article three standard article three s is so if you go back we have five paragraphs in the dollar constitution the first deals with the supreme court it requires both bare majority and major party the next provision deals with the superior court also requires bare majority and major party the third provision deals with a combination of superior supreme and the core of the chancery which i think as a mathematical mathematical matter probably comes out close to requiring their majority and major party for the court of chancery and then the last two provisions deal with family court common pleas court which are only bare majority the district court in its first opinion said there is no article three standing the plaintiff that's not have article three standing with respect to the common pleas court and family court because as an independent he could never be excluded from those courts on the basis that he's a member of a he would have no traction it would be futile right yes he was a democrat and he didn't have to be an independent and well that could not have gotten in the court with respect to with respect to certain of the provisions as a democrat he would not have qualified but in fact other other provisions have opened up during the course of this litigation where a democrat would be qualified to serve and and in fact some opened up where a democrat or republican know there's going to be certain moment that you telling me that in the united states where you're guaranteed freedom of association well these are wonderful things in a first amendment that if i'm a member of an independent a member of the public a democratic party a situation where the governor of a state of all the governors of the state for one hundred years had appointed only members of one of the two major political parties to the bench of that court it's the way it worked in the window to the place it is not required but they have the discretion they have the discretion and collectively exercise that discretion to over the space of one hundred years never appoint an independent to the bench of that court as a matter of tradition as a matter of there are constitutionally permitted right to select members of the judiciary who they believe reflect their judicial philosophy or a judicial philosophy compatible compatible with what they perceive as as the mainstream of political views in the state can it be deemed unconstitutional in practice i don't think it i don't think it could be because i  case that we have here is a situation where we have a collision between first amendment rights and electorial rights the first amendment right of the applicant to a to a to a put to a position then it is higher up in  submit your honor the other is higher because what we're talking about this is the very issue to which others are the other first amendment right is what i would refer to as the first amendment right of the electorate in general to had provisions in the law that no no late need apply it could be because that reflects the collective will of the elected people that we're going get into that early no i don't believe so your honor first of all that would be unconstitutional why why the reasons why would be in constitution well because it would discriminate on the basis of race as opposed to political party well but this isn't this is this is why you think you can discriminate on the basis of political party i e people who know me that i would well know what's given it based on political beliefs what i'm saying is that you can discriminate based on who constitutes the major parties if you want to a damn fi about a body of people that would reflect the mainstream and perfectly appropriate way of doing that is to say we're going to select people from the two major political parties and now you say to me well isn't that unconstitutional how can you exclude independents and i think the answer is that the answer i would g is that governors and presidents in practice do that repeatedly and and and that's why i posed the hypothetical day to practice makes the constitution you know but because they because a governor because the governors of a state could collectively say to themselves or act on the on the on the conviction that they're only appointing members of the two major parties to the bench if that is constitutional then why do the people of delaware not have the right to say actually we don't want our governor to have that discretion we want maybe answer your question where you're going to go to say the answers the question you just posed so why can't the people of delaware have the right to then you said something which i think is the answer the question well i think the people are saying we don't want our governor to have that discretion well they have taken that first of all begin the discussion right at the issue here is not the right a governor  i think probably five or six times in the or if the for the first to meant right of the general assembly that trumps a bad choice of words the first amendment rights of the independent candidate i think  elected right and the electorate has supported so their first amendment right to discriminate no i'm not saying a first amendment right to discriminate it was you should you could look at that i'm like let me go back to l of the electorate which alexy assembly which determines who is going to be in what what the composition of the jewish tradition harry will be what i'm saying is in the all right case the exception that was created in the court in l ron which involved political patronage for all positions the first argument was made by the proponents said in order for our democracy to operate the parties need to prepare amid to provide political patronage because political parties can't survive without patronage and parties are important to democracy and the supreme court plurality said well we don't buy that argument with respect to all of patronage but do think that you are right with respect to policy makers and why are you right with respect to policy makers because when a governor appoints a member of the judiciary the argument is that judges are policy makers yes and therefore we can determine what party should be represented in the judiciary and the argument is that judges are policy makers and therefore the first amendment lights up an applicant doesn't have a first amendment right in connection with an application for that position judges are policy makers even child judges are policy makers i think all i've well we've set forth rather elaborate list of powers but i  think responsibility is to determine the law apply the law to the facts and observe precedent and that kind of you say is a policy making because i think in delaware for certain judges or policymakers the court of chancery all of the probably the most important from the state of delaware is a point of view body of law that is made in and delaware has its corporate law and the most important component of its corporate law are  case of common law decisions that are made and we sided there as the difference what is the difficulty we have on them on statutory well with a difference in terms of whether or not the judges political beliefs control the common law should be i'm not saying that this is an arbitrary or or whimsical decision but i'll take the corporate law as an example the the proposition and the corporate law that the duty of care that directors is is governed by the business judgment rule that is a judicial creation that's not in a statute there are literally dozens of decisions in delaware when they're in the area of the corporate law where judges make decisions not only on what the fiduciary duty is one example is judges decided insider trading violated fiduciary duties that wasn't a statutory provision in da where it was a they were trying to protect the ability of the electorate to elect a governor for example and because the electorate supported the policies of that governor and then see that governing out appoint people to positions that meet the governor's policy agenda and they said in that context political affiliation is a permissible consideration because they were wayne the  democratic rights of the electorate to get their the election results affection weighted against the first amendment calling of an individual judge use are that kind of policy maker because whether we like it or not judges make decisions that impact the electorate and that the electorate has the feelings about our concerns about our views about judges judicial philosophy is impact the decisions and those decisions affect people and so that is why judges are policy makers both in the sense of all the criteria the cases put forward but why it governor can pick a a judicial nominee that that from his party because he believes that nominee as a member of that party will reflect the judicial view supported by the governor the people of delaware equation that's true but it's the same but we have the same democratic concern on i'm what i would call the state side of this equation the people of delaware have said we need it we want a bipartisan judiciary they don't say they want to republican or democrat they say we want a bipartisan judiciary composed of the two major parties and what dan has produced what then has produced think about this for a minute it a member of the chance record of delaware was trying to remember the chance because if he had been independent he would've been able to meet under under this provision if the major party provision was in effect then i don't remember what year  fact he did reflect i've got a very full i'm not sure i've run out of my well goodness to do it with venom he clearly the term did not reflect the sentiment of the state of delaware which is one of the things that made him so great he integrated delaware schools before a board of education and had death threats brought against him because he did not reflect the popular sentiment in delaware when he went on the bench well but he did reflect the popular sentiment of a portion of a major portion of the population and delaware and and i am your honor i can't think of a more important especially today especially when what we've been watching over the last who who knows how long has been going on but it seems to get worse every week that this is a provision that drives people to the middle this is a provision that pushes an institution to the middle or policy makers then there is no first amendment right that cuts off the ability of these provisions to operate and that they should say that because everybody in the judiciary assume that your argument that their policy makers even even the elected official in the state has a right to determine who should sit in what court and from what party i think i think that as i do under the constitution but i do think i think that would work an extraordinary change but we have to we have to agree with you the judges of policymakers from this supreme court of delaware down to well the only thing the only thing that's at issue in particular in this case right now is whether the supreme court's superior court and court of chancery are policy it it is a trial court but it makes common law at least in the first instance and makes common law but but your honor let me simply i'm trying to think of a one sentence way to respond to your concerns and it and all i can say is i think that all judges have a philosophy that they bring to the resolution of cases i'm not saying an unconscious philosophy i think people have to judges have judicial philosophy and that that's what and those philosophies are of concern to the electorial process that's why most states elect judges i have to give your argument on judges be policy makers some thought but what if i disagree with is your argument well are second are saying they're not policy will under the brantley decision the supreme court basically said you know the  the the the ability to consider or use political affiliation in connection with an appointment to office is not limited to policymakers the supreme court said there are other circumstances and where it would well i mean your honor i would submit that it's not that different because the electoral judges that were issue either least in the mcguire case were judges who actually made decisions about what is right and wrong they weren't there just to represent their parties at the polling stations are are profound and have are hugely consequential and yet i'm sure each of them made decisions where they apply the law that they didn't agree with but in other situations those judicial philosophy is did make a difference but my point about a political balance body is that even have judges twenty's asked me if we disagree with you the judges are policy makers i think affectively do we lose and the answer is no because  brandy the supreme court recognized another situation in which political affiliation could be considered even if the persons weren't policymakers and that was a statute that mandated political balance in the got almost they have a page of agencies where political purty good controls the appointment but their own limbers of the executive all those agencies are executive it is but it didn't matter that they were policy makers that was the point the brandy made it brandy court said you can take political when a statute mandates political balance you can take that into consideration even if they're not policy makers but i would submit our case we have dummy strong case because we have a we have a constitutional provision that mandates political balance like hundred like dozens of federal statutes do for people who are not who are people who are supposedly independent these are requirement yet you've got to be in a position where you're simply rejected because of who and what you are but how do you know that unless you make an application unless you make yourself a  in that particular state you have a democratic senator republican senator and they make an agreement between themselves of bass and whoever the president is going to be a three for one split so in other words they go solicit candidates for the district court with an understanding that if you have a democrat in the white house you get three democrats or republicans if you're a republican you get three publicans for every democrat and that's the way they do business because they've been doing business it was just hypothetically it's the way they do business is that unconstitutional i this the way it's been done for many many years is that unconstitutional it is arguable and here's the problem with that is that people conflate political party with political or judicial they want people from their port is that unconstitutional right exactly i believe it i need if i believe that any discrimination of employment in the policy pick a position which i think that the judge is not a policy maker and i get into that and it seems that the legislature and the general public accepted that way accept it because nobody has said it and it's expected to be that if you're a republican you you look for republicans to sit in the supreme court and if you're a democrat you look for democrats this is we could all fit in the senate and people elected by the electorate accepted that made it accepted that way for centuries except in something a certain way doesn't make the right or constitutional or not  the brink exception to this the the difference is that judges are are not answerable to the appointing authority the judges are not supposed to be  that was an example given and i don't think there's been a case which has laid out or i thought actually challenged or brought that to not too too unusual determination to go through the analysis so there's a difference between on who formulate policy and the policy maker in in the context of the first member a policy maker job is not the form of pasta but to help implement policy and that's why i was that's why i've you know that the record of a similarity of a political go be making policy but again you're not making policy to satisfy the executive so the football coach is answerable to the athletic director exactly and the judge is interior not answerable to whomever appoint them that's the distinction you're make with the governor would like to have them answerable to him or her i'm sure they would for him for the president would like your concern and that's why he has me has he selects certain people from certain parties well he  he has a policy he was elected by you like to the people of delaware elected as governor and the governor now would has a certain policy that the electorate approved and he would like to see that policy implemented and that's why he so excerpt judges swarthy and that's i think that this is about them and that's how judges are reappointed by the governor not by the general assembly or by the proper vote as that's true usually a but the general assembly confirmed conference but they're really what you've expired on your first twelve year term friend's brief or in the argument of the requirement that political parties have to be an essential requirement in order to perform the duties of a judge i hope everybody in this room agrees as it is it is not for a moment standing issue with regard to the i believe the family for eternity which is true given that he never made an application in never made himself a i'd suggest promote that explains when you dish your delaware's of forty percent of our budget is derived from corporate franchise taxes and the chief reason that people in corporate in delaware with between political philosophy and political affiliation a judge can determine or to be a governor can determine in an interview and with reviews from from the the delaware bar someone's abilit nominees and i don't think we're going to lose that by virtue of the elimination of this constitutional provision and to be quite candid your honor although there has been public statements about how helpful this is for that purpose it's a it's a nice statement but it's really when it when it comes down to it just a statement without any support and as your honor pointed out just to fight with not have been here despite the fact that on the bench despite the fact that he is pursuing the criminal legal minds of his time and orlando had no particular political bias in his in his ruling the harm i think suzanne it is a balancing of interests there are three benefits injuries changed i don't really think familiar because the first amendment there are balancing test in the first amendment and the balancing test in this instance is is somebody a policy doctrine is not policy policies affect the broad scope of people doctrine is to implement a constitution and to implement statutory and constitutional policy which is which is which are  no one wants to believe that the judges of this court and the delaware court of any court are allies in their work with the executive branch has because it's hard but this is the first of all i am remiss in my colleagues asked me to remind the court that every court that has confronted the issue of whether judges are policy makers has concluded that judges are policy makers and if the decision is made that judges are not policy makers then every judicial appointment could be challenged on the basis that the governor or the president picked this candidate would have tremendous ramifications as ideas though seem to go together the idea of an independent judiciary in the idea of judges being policymakers that's because our are our friends have mis focus the issue here the issue here is not how judges should perform their job the issue here is how judges should be appointed and the specific issue here is whether an applicant to a just just a position someone who aspires to a judicial position th i happen to have a process but other states don't the issue here is does the person who doesn't get the judicial position have a right to sue the governor or the president and say you violated my first amendment rights because you picked that person instead of me because they're of your party with that suit is that he his he is totally excluded i'm less he's totally excluded he's democrat or republican he's completely excluded from the process and  association well but but but by i guess what i'm saying your honor is that if the court were to hold the judges or policy makers that makes every decision subject to suit i'm a claim by an unsuccessful applicant that their first amendment association rights were violated because you governor have always appointed democrats or you discriminated against me because of the exercise of my first amendment rights in criticizing the governor with respect to some state operation it creates it it would work  massive change in how judicial positions are handled it would work a massive change in what kind of litigation could be brought with respect to every judicial appointment in this country not just in delaware and why has every court rejected it because judges are policy makers in the sense that they shape our government you shape our government and family court judges deal routinely with some of the most important policies preserving families i've been in family court and guardian ad litum cases they constantly are balancing the tension between the poor animal lights of  mother who's been accused of being abusive and the state's obligation or desire to remove a child from a situation in which the child is in danger what more profound policy choices could a judge ma then this is very fact driven determinations or it is but it's also a policy driven determination in sent in the sense that mot how much weight i put on the mother's claim and how much weight i put on because i don't think so because i think that there are there are there are statutory issues that come up where the statute is just simply clear and whether you agree with the stature and not you have to apply the green or mandatory sentenc so you have no discretion right but in every decision a judge makes or here she has discretion it could be characterized as a policy making to sit well i think that i think one judges have discretion they are making policy that is the essence of discretion that's not a bad thing that's the essence of the judicial process and let me ask this let's talk about first amendment rights of applicants to a judicial position most states elect judges and in most states when judges are elected the voters make a choice they discriminate against the applicants for the position based on what that applicant has said in terms of the exercise of their first amendment rights and more often than not what party they're to become a major party members of that party can be considered but the point i'm making is no one would suggest that the apple of judicial applicants first amendment rights have been violated because the population voted them down so the now let's filed this lawsuit and if he had wanted to file for judicial position there would have been a number of them coming up that he he would have been qualified to apply for i think he changed his registration even if he does see physicians