Delaware's Court System Favors Bipartisanship — and Succeeds Because of It

You be the judge: there’s a fine line between politics and justice. Or is there?

Ajudge is a lawyer who gets to know the governor. It does not hurt to be friendly with some state senators, too.

Funny thing about Delaware, though, the party affiliation does not matter. The state is the only one in the country with a constitution that requires the court system to be politically balanced between Democratic judges and Republican judges.

When Lady Justice comes here, she has to bring not only her blindfold, her scales and her sword, but her voter registration card.

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It means Republicans still get to go on the bench, even though they have to be appointed by Jack Markell, the governor who is a Democrat, and confirmed by the state Senate, which is run by the Democrats.

In the business world, this arrangement of one-seat-for-you-and-one-seat-for-me would probably be regarded as bid rigging, but in politics? It is called bipartisanship.

It is also working. Delaware’s court system is considered to be one of the finest, if not the finest, in the country. Much of it is due to the Court of Chancery, the renowned forum for corporate law and a magnet for attracting businesses to incorporate here. This leads to more than bragging rights. It leads to corporate taxes and fees that pay for more than a quarter of the state’s multi-billion-dollar budget.

Lately the governor and the state senators have been making a lot of judges. Since Markell was elected to a second term last year, he has appointed or reappointed nine of them, five Democrats and four Republicans.

Just because the selection is not partisan, does not mean it is not political.

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Celia CohenTwo of the new Democratic judges were right out of Markell’s Cabinet. He named Vivian Rapposelli, the secretary of children’s services, to the Superior Court, which hears criminal and civil cases, and he put Carl Danberg, the correction commissioner, on the Court of Common Pleas, which hears lesser criminal and civil cases.

Markell also made a new Republican judge for the Superior Court out of Paul Wallace, a deputy attorney general. He was a model of how to wind up on the bench.

Wallace not only took pains to get to know his own way around Legislative Hall but made sure his kids did, too. He spent many days in Dover as the legislative liaison for the Attorney General’s Office, and both of his children interned in the state Senate.

It paid off. Wallace not only got the appointment from Markell, but also praise from senators on both sides of the aisle during the confirmation hearing.

“We’ve seen you in action, and we know your judicial temperament will be just right,” Patti Blevins, the Democratic president pro tem, told him.

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“It’s been a pleasure having your children in the Senate. I feel sorry for the Attorney General’s Office, because they’re losing a good man,” Gary Simpson, the Republican minority leader, said.

Not that the political bloodlines are anything new. Myron Steele, the chief justice, was a Kent County Democratic chair in a previous incarnation. Leo Strine Jr., the chancellor, was the counsel to Tom Carper when the Democratic senator was the governor, and Bill Chandler, the chancellor before Strine, was the counsel to Pete du Pont, the Republican governor.

The prelude to the bench, however, is like that commercial about Las Vegas. What happens in politics stays in politics. For evidence, it does not take looking further than the last campaign season.

A Sussex County race for state senator was in chaos. Eric Bodenweiser, a leader of the Tea Party movement, had taken out Joe Booth, the sitting Republican senator, in a party primary and looked like a lock to go to the state Senate. He was running in a conservative district against a Democratic walk-on candidate.

Then Bodenweiser retreated from public appearances. Next he suspended his campaign. Finally he withdrew his candidacy. It turned out he had reason. He was about to be indicted for child sex crimes after an accuser ended some 20 years of silence to come forward.

The Republicans were looking at losing a race they were once sure of winning. They drafted Brian Pettyjohn, a past mayor of Georgetown, as a write-in candidate, but they dearly wanted to elevate him to the ballot. When the election commissioner told them there were no grounds, they filed suit.

Strine, the Democratic chancellor, heard the case and ruled in favor of the Republicans. The Supreme Court took it on an appeal considered by all five justices—three of them Democrats, including the chief, and the other two Republicans. If the bench was split, the decision was not. It was unanimous, and the Republicans won again.

So did Pettyjohn on Election Day. It took a lot of Democratic judges to make a Republican state senator.

The politics of judicial appointments set up one of the most blatant deals in modern Delaware history, although perhaps not in all of state history. The precedent for deal making goes way back, about 220 years, when the Federalists got to name the chief justice and the Democrats had their say on the chancellor.

The modern deal went down in 2005. Jane Brady, the Republican attorney general, was up for re-election the next year, and it was an open secret that Beau Biden, who had the most famous father in the state, was planning on making his political debut as the Democratic candidate against her.

Brady must have been seeing her political life passing before her eyes. When a Republican judgeship opened up on the Superior Court because of a retirement, it looked like a lifeline. Through intermediaries, there was back-channel talk with Ruth Ann Minner, the Democratic governor. A deal took shape, and what a deal it was.

Brady would be nominated for the judgeship. Minner would get to appoint an attorney general to finish out Brady’s term and flip the office to Democratic control. Beau Biden would have Brady out of his way.

There were howls about the politics of it all, everywhere but the state Senate. The senators thought politics was a fine avenue for getting a job. It was how they got theirs.

Amid a host of theatrics, which included a lawyer holding up a sign reading, “Judgeship for sale,” Brady was easily confirmed. So many judges could not resist showing up to watch that two of them wittily noted it in a conversation.

One judge said, “I wonder how justice is being meted out today.” The other judge replied, “It’s not. Politics is being meted out today.”

Justice and politics, inseparable as ever.  


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