In the United States, the bedrock of jurisprudence is stare decisis, Latin for “let the decision stand.” Once a court has rendered a decision on a case, that decision becomes part of the precedent, and in subsequent cases, judges adhere to the principles of that decision.
In other words, even as judges join and leave the bench, the rules stay the same. Changes can occur, but typically only if there is a good reason to revisit the guiding principle. This system differs from the judicial systems in many other countries, where the rules can change as new judges are appointed or elected.
Delaware’s award-winning courts have long been considered the preeminent forum for handling corporate disputes. The body of corporate law is more than a hundred years old and sets forth the rules and procedures for directors and shareholders of Delaware business entities, providing clear and consistent guidance. Corporate stakeholders count on Delaware’s Court of Chancery and the Supreme Court to apply the State’s business statutes correctly and consistent with precedent when disputes arise.
In order to ensure that the Courts continue the tradition of superior corporate jurisprudence even as justices join and retire from the bench, Delaware has crafted a careful and deliberate judicial selection process with a number of features that make it unique among the states.
Appointed, Not Elected
Judges in Delaware are not elected by voters, but rather are appointed by the Governor for 12-year terms, with the consent of the State Senate. Judges may choose to serve for additional terms, but must be reappointed through the same process.
Delaware’s leaders consider appointment to be a better way to select judges because it can reduce the potential for conflict of interest. Prospective judges don’t have to campaign and lobby the voters whom they may later see in their courtrooms.
The 12-year term is long by national standards; again, this is by design. Delaware judges are called upon to consider complex issues, and their decisions become part of the State’s body of corporate law. The longer term gives them time to further develop expertise on the court and can also provide more stability and continuity, particularly if the judge decides to seek a second term.
An Independent Nominating Commission
Although Delaware’s Governor selects judges, he or she can only choose from a list of candidates submitted by the State’s Judicial Nominating Commission (JNC).
The JNC solicits applications, reviews the candidates’ credentials, and then provides the Governor with a list of at least three viable candidates (unless the applicant pool is less than three). The Governor nominates one of the names on the list and submits the choice to the State Senate.
The JNC has eleven members, ten of whom are appointed directly by the Governor. The eleventh member is first nominated by the Delaware State Bar Association, and then appointed by the Governor. The Governor also designates the Commission chair.
There are several requirements regarding the composition of the JNC: At least four of the members must be lawyers; at least four of the members must not be lawyers; and no more than six commission members can be of the same political party.
Self-Selection, then Scrutiny
When a judicial vacancy occurs, the Governor instructs the JNC to publish a public notice asking anyone interested in the post to apply for the position. The rigorous application is an important first filter, keeping all but the most qualified from even considering the post. Applicants are expected to provide comprehensive details about their professional experience, including prior judicial, trial, and arbitration experience, as well as public offices held; names and outcomes of cases, including opposing counsel’s information; tax information; writing samples; and also political affiliation.
The latter is one of the most unique features of Delaware’s judicial selection process. According to the Delaware State Constitution, all courts must be politically balanced, with a similar number of republican and democrat judges, and the judges overall in the State must also be politically balanced. In other words, courts with an odd number of judges cannot have a party majority of more than one, and there cannot be a party majority of more than one among all of Delaware’s judges.
Therefore, applicants must be registered with a political party, and are required to report their party affiliation on their application. They must even report how long they have been a member of the political party, which is designed to discourage potential applicants from switching parties in the event that the Governor must select a candidate from a particular party. Moreover, if the vacancy must be filled by someone from a specific party, then only candidates from that party may be considered for the post.
The Governor’s Choice
Once the Governor has the list of candidates, he or she interviews each one before making a decision. The Governor does not have the option to consider any candidate that is not on the list provided by the JNC, an additional constraint to keep the process free of political machinations.
If unsatisfied with any of the candidates on the list, the Governor can ask the JNC for a new list and can choose a nominee from either list. The Governor cannot go back to the commission a third time unless the State Senate does not approve the Governor’s nominee.
The Legislature Weighs In
Once the Governor makes a choice, he or she submits the nominee to the State Senate for approval. The Senators hold a hearing to interview the nominee, and then vote on whether to approve the nomination.
If the Senate does not approve the Governor’s nominee, the Governor asks the JNC to provide a new list of names for consideration. The JNC may have candidates still available from the original selection process, or may have to begin the process over again.
An Expedited Process
Although the process includes the opportunity to go back for new names, this does not typically happen. Even when it does, the different parties involved work diligently to ensure that vacancies are filled as quickly as possible. This is another feature that sets Delaware’s selection process apart. While many states can take months to fill judicial positions (or years in the case of the federal courts), the stakeholders in Delaware’s judicial selection process are committed to filling vacancies quickly so that the courts are able to continue their work in a timely fashion.
Maintaining a Tradition of Excellence
The process will likely be put through its paces multiple times over the next several years, as judges retire and create vacancies. “It will fall to the JNC, the Governor, and the Senate to do a careful job to maintain the tradition of judicial excellence,” says Bill Chandler, former Chancellor and current chairman of the JNC. “We have a selection process that works well, a quality bar with high caliber talent from which to draw applicants, and a strong tradition of talented people willing to serve the State. Our courts are one of our State’s stock and trade, and everyone is very conscious of that, so we will work together to fill vacancies with the best the State has to offer and that the business and legal communities rely on.”