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Ballotpedia Courts: State Partisanship/Partisan Balance Rules
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June 2020
- Delaware is the only state in the country with a constitutional requirement mandating partisan balance on the state supreme court.
- States like New Jersey and Massachusetts have informal, but no constitutional rules which mandate balance on the state supreme court.
- In the section below, we provide data to consider whether such partisan balance requirements work in practice.
Delaware
In 1851, Delaware amended its state constitution and became the first state in the country to constitutionally mandate partisan balance on its state supreme court. Delaware’s constitution reads:
| “ | three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.[1][2] | ” |
As of 2020, Delaware remains the only state with such a requirement in its constitution.[3]
Below is a table which shows the justices on the Delaware Supreme Court, the Governor responsible for the appointment, and our Confidence Score for each justice:
| State | Governor | Justice | Leaning |
| Delaware | Appointed by John Carney (D) | Tamika Montgomery-Reeves | Mild Democrat |
| Delaware | Appointed by Jack Markell (D) | Karen Valihura | Indeterminate |
| Delaware | Appointed by John Carney (D) | Gary Traynor | Mild Democrat |
| Delaware | Appointed by Jack Markell (D) | James T. Vaughn | Strong Democrat |
| Delaware | Appointed by John Carney (D) | Collins Seitz | Strong Democrat |
Delaware’s constitution mandates that there must be partisan balance on the state supreme court. Our confidence measure shows that there are two Strong Democrats on the court, two Mild Democrats, and one Indeterminate justice. Although Gary Traynor is a registered Republican, the Federal Election Commission records that he has consistently donated to Democratic political campaigns and has no recorded donations to Republican campaigns.
Karen Valihura is also a registered Republican in the state. Unlike Traynor, she has donated to Republican campaigns throughout her career but provides no further evidence of partisanship.
New Jersey
The National Center for State Courts describes New Jersey’s informal process of ensuring partisan balance on its state supreme court as follows:
| “ | New Jersey’s courts also have a tradition of political balance. Governors, regardless of their party affiliation, have generally followed a policy of replacing outgoing judges with someone of the same party or philosophy. On the supreme court, the traditional balance is three Democrats and three Republicans, with the chief justice belonging to the party of the appointing governor.[4][2] | ” |
The state of New Jersey has two rules governing judicial appointments, one written, one unwritten. The written law requires that justices are subject to reappointment by the governor and reconfirmation by the legislature after an initial seven-year term. The unwritten rule is that the governor of the state of New Jersey is to appoint justices in a way that alternates the party of the justice each time he receives the opportunity to appoint a new justice to the court or to ensure partisan balance on the court.
Below is a table which shows the justices on the New Jersey Supreme Court, the Governor responsible for the appointment, and our Confidence Score for each justice:
| State | Governor | Justice | Leaning |
| New Jersey | Appointed by Chris Christie (R) | Lee A. Solomon | Mild Republican |
| New Jersey | Appointed by John Corzine (D) | Stuart Rabner | Mild Democrat |
| New Jersey | Appointed by Chris Christie (R) | Anne Patterson | Mild Republican |
| New Jersey | Appointed by Christine Todd Whitman (R) | Jaynee LaVecchia | Mild Republican |
| New Jersey | Appointed by James McGreevey (D) | Barry T. Albin | Mild Democrat |
| New Jersey | Appointed by Chris Christie (R) | Walter F. Timpone | Indeterminate |
| New Jersey | Appointed by Chris Christie (R) | Faustino J. Fernandez-Vina | Mild Republican |
While John Corzine (D) was governor of New Jersey, he appointed two justices to the court, Helen Hoens and Stuart Rabner. One of his nominees, Stuart Rabner, was Gov. Corzine’s chief legal counsel and the attorney general for the state of New Jersey. Gov. Corzine also reappointed two Republican-leaning justices nominated to the bench by Governor Christine Todd Whitman (R) and one Democratic-leaning justice appointed to the bench by Governor James McGreevey (D).
Governor Chris Christie (R) broke precedent in attempting to appoint another Republican-leaning justice to the state supreme court without first reappointing Justice Rabner. Gov. Christie also did not reappoint Helen Hoens, who was first appointed by Governor Christine Todd Whitman, and stated that he did so because he knew the Senate would reject her nomination. Justice Hoens is only the second justice in the history of New Jersey to sit on the court and not receive renomination after her second term. The only previous justice not to receive renomination was Justice John E. Wallace, a Gov. James McGreevey (D) appointment who Gov. Christie also did not renominate.
Gov. Christie’s Republican appointments recorded lower partisan Confidence Scores than the justices appointed by Whitman and Corzine. Christie’s appointments record an average Pure Partisan Score of 4.5. Whitman’s justices register an average Pure Partisan Score of 7. Corzine’s justices register an average Pure Partisan Score of 9. McGreevey’s justices record an average Pure Partisan Score of 7.
Although some states have rules to ensure partisan balance on the state supreme court, such rules don’t prove a failsafe solution to creating balance on the court. Even within those rules, governors tend to find ways of appointing justices of their own party who have greater attachment to the party and justices of the opposite party who have fewer partisan ties.
About the authors
Samuel Postell is a staff writer on Ballotpedia's Marquee Team and a lecturer at the University of Dallas.
Luke Seeley is a staff writer on Ballotpedia's Marquee Team.
Heidi Jung developed the graphics.
Ballotpedia CEO Leslie Graves, Ballotpedia COO Gwen Beattie, Editor-in-Chief Geoff Pallay, and Ballotpedia Vice President of external relations Alison Prange reviewed the report and provided feedback as did editor Cory Eucalitto. Outside reviewers included Dr. G. Alan Tarr from Rutgers University, and Dr. Aman McLeod from the University of Idaho College of Law.
Footnotes
- ↑ State of Delaware, “ARTICLE IV. JUDICIARY” accessed October 5, 2020
- ↑ 2.0 2.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ This provision of the Delaware constitution will come before the state supreme court because of a case called Carney v. Adams.
- ↑ National Center for State Courts. (n.d.). “Judicial Selection in the States: New Jersey.” accessed October 5, 2020 from http://www.judicialselection.us/judicial_selection/index.cfm?state=NJ#:~:text=Judicial%20Selection%20in%20the%20States%3A%20New%20Jersey&text=The%20superior%20court%20is%20the,reach%20the%20age%20of%2070
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