No. 19-309

In the

Supreme Court of the United States__________________

JOHN C. CARNEY, GOVERNOR OF DELAWARE,Petitioner,

v.

JAMES R. ADAMS,Respondent.

__________________

On Writ of Certiorari to the United States Court of Appeals

for the Third Circuit__________________

Amicus Curiae Brief of the Republican NationalCommittee in Support of Petitioner

__________________

Justin RiemerChristopher WhiteRepublican National Committee310 1st Street SEWashington, DC 20003(202) 863-8626

Patrick T. LewisBaker & Hostetler LLPKey Tower127 Public SquareSuite 2000Cleveland, OH 44114(216) 861-7096

Richard B. Raile Counsel of Record E. Mark BradenKatherine L. McKnightTrevor M. StanleyBaker & Hostetler LLP1050 Connecticut Ave., N.W.Suite 1100Washington, DC 20036(202) 861-1711rraile@bakerlaw.com

Counsel for Amicus Curiae Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

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QUESTIONS PRESENTED

1. Does the First Amendment prevent Delawarefrom regulating the discretion its political branchesexercise over the judicial-appointment process, eventhough it plainly does not prohibit state (or federal)officers from appointing or rejecting judicial candidateson the basis of their protected speech and association?

2. Does a plaintiff have standing to challengejudicial eligibility requirements that may not preventhim from obtaining a seat, in the hope of an injunctionthat would do nothing to assure him of even beingconsidered for an appointment?

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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

INTEREST OF THE AMICUS . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE ARGUMENT . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. Delaware’s Regulation of Politics IsAppropriately Tailored to Its OverwhelmingSovereign Interests and Justifies aComparatively Small Burden on the Plaintiff’sFirst Amendment Rights . . . . . . . . . . . . . . . . . . . 4

A. A State’s Compelling Interest in ControllingIts Judicial-Appointment ProcessNecessitates a Comparatively DeferentialStandard of Scrutiny . . . . . . . . . . . . . . . . . . . . 5

B. Delaware Has Tailored Its Regulation to ItsOverriding Sovereign Interests. . . . . . . . . . . . 9

1. Delaware’s Interests Are Compelling andthe Means Tailored . . . . . . . . . . . . . . . . . 11

2. Party Membership Is the Best AvailableProxy for Achieving These CompellingEnds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. The First Amendment Interests at Issue AreComparatively Weak. . . . . . . . . . . . . . . . . . . 21

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D. Upholding Article IV, Section 3 Will NotImpact Other Applications of FirstAmendment Doctrine; Striking It Down WillRaise a Host of New Questions. . . . . . . . . . . 23

II. The Plaintiff Cannot Show Injury Where HeMay Obtain an Appointment, or RedressabilityWhere a Favorable Ruling Would AllowHim Still To Be Rejected for Purely PoliticalReasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

iv

TABLE OF AUTHORITIES

CASES

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989). . . . . . . . . . . . . . . . . . . . . . . 31

Anderson v. Celebrezze, 460 U.S. 780 (1983). . . . . . . . . . . . . . . . . . . . . . . . 7

Branti v. Finkel, 445 U.S. 507 (1980). . . . . . . . . . . . . . . . . 17, 19, 20

Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632 (Del. 2017) . . . . . . . . . . . . . . . . . . 29

Burdick v. Takushi, 504 U.S. 428 (1992). . . . . . . . . . . . . . . . . . . . . 7, 21

Cuffley v. Mickes, 208 F.3d 702 (8th Cir. 2000). . . . . . . . . . . . . . . . . 8

Daunt v. Benson, No. 1:19-cv-00614, 2019 WL 6271435 (W.D.Mich. Nov. 25, 2019) . . . . . . . . . . . . . . . . . . . . . . 25

Elrod v. Burns, 427 U.S. 347 (1976). . . . . . . . . . . . . . . . . . . . . . . . 4

Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214 (1989). . . . . . . . . . . . . . . . . . . . . . . 16

Evenwel v. Abbott, 136 S. Ct. 1120 (2016). . . . . . . . . . . . . . . . . . . . . 10

Garcetti v. Ceballos, 547 U.S. 410 (2006). . . . . . . . . . . . . . . . . . . . . . . . 5

v

Gregory v. Ashcroft, 501 U.S. 452 (1991). . . . . . . . . . . . . . . . . . . 5, 6, 10

Growe v. Emison, 507 U.S. 25 (1993). . . . . . . . . . . . . . . . . . . . . . . . 18

Hunt v. Cromartie, 526 U.S. 541 (1999). . . . . . . . . . . . . . . . . . . . . . . 25

Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018). . . . . . . . . . . . . . 7, 9, 19, 23

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . . . 27, 31

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . 2, 9

Minn. State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271 (1984). . . . . . . . . . . . . . . . . . . . . . . 20

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). . . . . . . . . . . . . . . . . . . . . . . . 7

Munro v. Socialist Workers Party, 479 U.S. 189 (1986). . . . . . . . . . . . . . . . . . . . . . . . 7

N.L.R.B. v. Noel Canning, 573 U.S. 513 (2014). . . . . . . . . . . . . . . . . . . . . . . . 9

R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941). . . . . . . . . . . . . . . . . . . . . . . 30

Republican Party of Minn. v. White, 536 U.S. 765 (2002). . . . . . . . . . . . . . . . . . . . . . . 18

In re: Request for an Opinion of the Justices, 155 A.3d 371 (Del. 2017) . . . . . . . . . . . . . . . . . . 30

vi

Rucho v. Common Cause, 139 S. Ct. 2484 (2019). . . . . . . . . . . . . . . . . . . . . 26

Rutan v. Republican Party of Ill., 497 U.S. 62 (1990). . . . . . . . . . . . . . . . . . . . . . . . 25

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976). . . . . . . . . . . . . . . . . . . . . . . . 31

Snowden v. Hughes, 321 U.S. 1 (1944). . . . . . . . . . . . . . . . . . . . . . . . . 10

Sugarman v. Dougall, 413 U.S. 634 (1973). . . . . . . . . . . . . . . . . . . passim

Supreme Court of Va. v. Consumers Union of U.S.,Inc., 446 U.S. 719 (1980). . . . . . . . . . . . . . . . . . . . . . . 18

Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). . . . . . . . . . . . . . . . . . . . . . . . 4

Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449 (2019). . . . . . . . . . . . . . . . . . . . . 29

Town of Greece, N.Y. v. Galloway, 572 U.S. 565 (2014). . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Nat’l Treasury Emps. Union, 513 U.S. 454 (1995). . . . . . . . . . . . . . . . . . . . . 5, 22

Vieth v. Jubelirer, 541 U.S. 267 (2004). . . . . . . . . . . . . . . . . . . . . 8, 26

Warth v. Seldin, 422 U.S. 490 (1975). . . . . . . . . . . . . . . . . . . . . . . 27

vii

Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015). . . . . . . . . . . . . . . . . . . . . . . 18

CONSTITUTION

Del. Const., art. IV, § 1 . . . . . . . . . . . . . . . . . . . . . . . 6

Del. Const., art. IV, § 3 . . . . . . . . . . . . . . . . . . passim

OTHER AUTHORITIES

Brennan Center for Justice, Judicial Selection: AnI n t e r a c t i v e M a p , a v a i l a b l e a thttp://judicialselectionmap.brennancenter.org/?court=Supreme (last visited Jan. 27, 2020) . . . . 18

Erwin Chemerinsky, Ideology and the Selection ofFederal Judges, 36 U.C. Davis L. Rev. 619(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Delaware State Bar Association, Legal Directory,available at https://www.dsba.org/publications/delaware-legal-directory/ . . . . . . . . . . . . . . . . . . 31

James M. O’Fallon, Marbury, 44 Stan. L. Rev. 219(1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

William T. Quillen & Michael Hanrahan, A ShortHistory of the Court of Chancery (1792–1992)(1992), reprinted at https://courts.delaware.gov/chancery/history.aspx . . . . . . . . . . . . . . . . . . . . . 29

E.E. Schattschneider, Party Government (1942) . . 15

Cass R. Sunstein et al., Are Judges Political? AnEmpirical Analysis of the Federal Judiciary(2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

viii

The Federalist No. 10 (J. Madison) (Jacob Cookeed., 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Federalist No. 43 (J. Madison) (Jacob Cookeed., 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Virginia Van Der Veer, Hugo Black and the K.K.K.,American Heritage (April 1968), reprinted athttps://www.americanheritage.com/hugo-black-and-kkk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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INTEREST OF THE AMICUS

The Republican National Committee (“RNC”)manages the Republican Party’s business at thenational level, supports Republican candidates foroffices of all types, coordinates fundraising and electionstrategy, and develops and promotes the nationalRepublican platform. The RNC has a vital interest inlaws governing nominations and appointments to thehighest state and federal offices. Major political partiesplay a central role in these processes by nominatingcandidates to office and providing a critical layer ofquality-control vetting by officials with a vestedinterest in putting forward only those most likely toserve the common good honorably and competently.The Third Circuit’s unprecedented and illogicalimportation of patronage principles into the judicial-appointment process risks defeating states’ ability tovet candidates for their highest offices, and it hamperspolitical parties’ ability to participate in the processand advance the best candidates. The ruling below, ifleft uncorrected, would impact the RNC’s members andconstituents and Republican interests in Delaware andelsewhere.1

1 Pursuant to Supreme Court Rule 37.6, the RNC states that nocounsel for a party authored this brief in whole or in part and thatno person other than the RNC or its counsel made a monetarycontribution toward its preparation or submission. Pursuant toSupreme Court Rule 37.3, the RNC states that the petitioner hasfiled a blanket consent to amicus briefs with the clerk and that therespondent has consented in writing to the filing of this brief.

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INTRODUCTION AND SUMMARY OF THE ARGUMENT

The judicial-appointment process is inherentlypolitical. Presidents, governors, legislators, and (inmany states) voters select judges on the basis of theirpolitical affiliations and views—and they have done soever since Marbury v. Madison. But the court belowerroneously held that, all along, the First Amendmenthas restricted this very practice. This was anoverzealous extension of this Court’s political-patronage precedents into an arena where they cannotplausibly apply.

Instead, under bedrock principles of federalism,Delaware’s choices in structuring its own constitutionaloffices merit the highest deference. It is undisputedthat the First Amendment would not preventDelaware’s political branches from packing the courtswith members of a favored party, if they chose to do so.It necessarily follows that Delaware has every right,through its Constitution, to restrict its officers’ abilityto do just that. Indeed, the court of appeals expresseda hope that, notwithstanding its ruling, Delaware’spolitical branches will continue the State’s tradition of“bipartisan excellence” and thus continue choosingjudges on the basis of their speech and politicalaffiliation. This decision illogically forbade the Statefrom requiring conduct that the court of appeals itselfidentified as permissible and even admirable.

This absurd result follows from many errors of law.This brief examines just two of them.

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First, Article IV, Section 3 of the DelawareConstitution is appropriately tailored to the highestorder of state interests. The court below combined anunprecedented reading of this Court’s patronage caseswith a misunderstanding of the judicial-appointmentprocess and how Article IV, Section 3 regulates it.Delaware’s judges are not mere employees; they areamong its most important officers. Delaware’s interestin determining how they are appointed is among thehighest a state could ever have. And its choice to forbidits political branches from appointing only members ofone party, and to require that they choose members ofthe major opposition party, is carefully tailored to theState’s particularized interests in fostering judicialindependence and viewpoint diversity. At the sametime, any impingement on the plaintiff’s FirstAmendment rights is minimal, since his protectedviews and affiliations will be subject to scrutiny andmay disqualify him even if he receives his requestedrelief.

Second, the plaintiff lacks standing. He cannot showa concrete injury until he applies for office, which hehas not done and may never do. That is so becauseArticle IV, Section 3 may be read to allow independentsto sit on the courts, and the Court should not assume(as the courts below did) that it will prevent theplaintiff from being considered. That aside, the plaintiffalso cannot show redressability. Even with hisrequested relief, he still may be rejected because he isnot a Democrat. There is no reason to believe that, withor without Article IV, Section 3, the political brancheswould give the plaintiff any serious consideration.

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The only real “right” this decision affords belongs tothe State’s political branches, and it is a newlyinvented federal right for state politicians to exerciseunfettered partisan discretion in appointing judges.The ruling has almost no chance of increasing thenumber of independents on the bench; its likely resultis single-party hegemony. Worse, it risks calling to seaan armada of federal claims by disappointed judicialcandidates, every one of whom could plausibly claim tohave been rejected on the basis of First Amendmentprotected speech or association. That error cannot beleft uncorrected.

ARGUMENT

I. Delaware’s Regulation of Politics IsAppropriately Tailored to Its OverwhelmingSovereign Interests and Justifies aComparatively Small Burden on the Plaintiff’sFirst Amendment Rights

This Court’s First Amendment inquiry weighs stateinterests against impingements on First Amendmentrights, assessing both “the legitimacy and strength of[the] interests” and “the extent to which those interestsmake it necessary to burden the plaintiff’s rights.”Tashjian v. Republican Party of Connecticut, 479 U.S.208, 214 (1986) (internal quotation marks omitted)(standard for assessing state election laws); see alsoElrod v. Burns, 427 U.S. 347, 362 (1976) (pluralityopinion) (similar approach under “exacting scrutiny”).Those considerations apply both at the threshold stageof assessing what level of scrutiny applies and at theapplication stage of determining whether the burdenon First Amendment rights is justified. Thus, where

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First Amendment scrutiny reaches arenas of uniquestate sensitivity, such as its interest as an employer,Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), thisCourt has permitted restraints “that would be plainlyunconstitutional if applied to the public at large.”United States v. Nat’l Treasury Emps. Union, 513 U.S.454, 465 (1995).

The balance here tilts decidedly in favor of theState. Delaware’s interest in regulating its ownjudicial-appointment process is of the highest order,and the plaintiff’s interests in a marginal difference inscrutiny of his protected speech and association iscomparatively minimal. This means that, on the frontend, the Court should choose a comparatively lenientstandard of review and, on the back end, conclude thatArticle IV, Section 3 satisfies it.

A. A State’s Compelling Interest inControlling Its Judicial-AppointmentProcess Necessitates a ComparativelyDeferential Standard of Scrutiny

Delaware’s interest in controlling its own judicial-appointment process is of the highest magnitude.Control of this process is among the most“fundamental” and inalienable elements ofsovereignty—going even “beyond an area traditionallyregulated by the States” to the very peak of internalstate concern. Gregory v. Ashcroft, 501 U.S. 452, 460(1991). The states’ power “to preserve the basicconception of a political community” necessarily impliesthe “power and responsibility” to establish appointmentmethods for “important nonelective executive,legislative, and judicial positions.” Sugarman v.

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Dougall, 413 U.S. 634, 647 (1973) (emphasis added)(internal quotation marks omitted). Accordingly, thisCourt’s scrutiny has not been as “demanding” in thiscontext as in others, and classifications normallydeemed invidious can be justified here if they areemployed in a “narrowly confined” way. Id. at 648–49.

The court of appeals failed to give these paramountinterests their due weight. Instead, it treatedDelaware’s judiciary as akin to “a veterans’administrative services department, an assistantdirector of public information, assistant districtattorneys, city solicitors and assistant city solicitors, asolicitor for the Northeast Pennsylvania Hospital andEducation Authority, and a city manager, amongothers.” Pet.App. 22a–23a (footnotes omitted). Theseanalogies are wrong. Delaware’s judges, like itsgovernor, senators, and representatives, are “its mostimportant government officials.” Gregory, 501 U.S. at463. As this Court is to the Nation, Delaware’s courtsare to the State. Its very “judicial power” is “vested ina Supreme Court, a Superior Court, a Court ofChancery, a Family Court, a Court of Common Pleas,a Register’s Court, Justices of the Peace, and suchother courts as the General Assembly” may create. Del.Const., art. IV, § 1. In their official capacities,Delaware’s judges exercise a piece of the State’ssovereignty and constitute one of its three co-equalbranches of government.

For these reasons, the plaintiff cannot seriouslycontend that “the legal principles set down by thisCourt in the patronage cases” apply here in full force.Cert. Opp. 2. To the contrary, there is no “litmus-paper

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test” for balancing sensitive state interests againstFirst Amendment burdens. Anderson v. Celebrezze, 460U.S. 780, 789 (1983) (internal quotation marksomitted). A state’s judicial-appointment process is likeits election process. Just as a state has a right and dutyto “preserv[e] the integrity of the electoral process” andeven to “regulat[e] the number of candidates on theballot,” Munro v. Socialist Workers Party, 479 U.S. 189,194 (1986), it has the right and duty to vet potentialjudges and regulate the appointment process. “[T]osubject every” state burden on judicial candidacies “tostrict scrutiny and to require that the [act] be narrowlytailored to advance a compelling state interest…wouldtie the hands of States seeking to assure” that judgesare fit to serve by the standards they have, by theirsovereign right, identified. Burdick v. Takushi, 504U.S. 428, 433 (1992).

Yet, under the plaintiff’s erroneous view, all of ajudicial candidate’s First Amendment-protected speechand association would be off limits—since a candidate’swritings on judicial philosophy and associations withpublic-interest groups are, no less than the candidate’spolitical-party membership, protected by the FirstAmendment. Cf. Janus v. AFSCME, Council 31, 138 S.Ct. 2448, 2464 (2018) (treating collective-bargainingspeech as no different from “the platform of one of themajor political parties”). Similarly, under this Court’spatronage cases, the but-for motive to restrict positionson the basis of protected speech and association is noless suspect than the codification of thoseclassifications in law. See Mt. Healthy City Sch. Dist.Bd. of Educ. v. Doyle, 429 U.S. 274, 286 (1977)(plurality opinion). A strict First Amendment standard,

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if applied, may well “render unlawful all considerationof political affiliation” in judicial nominations. Vieth v.Jubelirer, 541 U.S. 267, 294 (2004) (plurality opinion).

That is untenable. Speech and association are theprincipal factors on which judicial candidacies rise andfall. They, in virtually every instance, are the but-forcause of the executive’s choice to nominate or not andthe legislature’s choice to confirm or not. See ErwinChemerinsky, Ideology and the Selection of FederalJudges, 36 U.C. Davis L. Rev. 619, 624 (2003) (“EveryPresident has appointed primarily, if not almostexclusively, individuals from the President’s politicalparty. Ever since George Washington, Presidents havelooked to ideology in making judicial picks.”).

Then-Supreme Court nominee Hugo Black had toaccount for his prior membership in the Ku Klux Klan(and renounce that group’s principles) to obtain theSenate’s trust—and rightly so.2 But see Cuffley v.Mickes, 208 F.3d 702, 709 (8th Cir. 2000) (applyingordinary patronage rules to invalidate prohibition onKlan members’ participation in government program).Similarly, it is no secret that some viewpoints(originalist, living-constitutionalist, etc.) and someassociations (Federalist Society, ACLU, etc.) aredeemed essential in some appointment andconfirmation environments and fatal in others. This isso even though all of these associational engagements“occup[y] the highest rung of the hierarchy of First

2 Virginia Van Der Veer, Hugo Black and the K.K.K., AmericanHeritage (April 1968), reprinted at https://www.americanheritage.com/hugo-black-and-kkk (last visited Jan. 27, 2020).

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Amendment values and merit[] special protection.”Janus, 138 S. Ct. at. 2476 (internal quotation and editmarks omitted). The prerogative to vet a judicialcandidate’s memberships, affiliations, and views is anindispensable feature, not a defect, in the Americansystem of government.

Subjecting this process to restrictive FirstAmendment scrutiny would run counter to nationaltradition. The political war over judicial appointmentsis as old, literally, as Marbury v. Madison, 5 U.S. (1Cranch) 137 (1803). See id. at 138 (describing the battleover judicial commissions); see also James M. O’Fallon,Marbury, 44 Stan. L. Rev. 219, 221 (1992) (citingevents leading up to that decision as “ensur[ing] thatthe Judiciary would be a focal point of partisan conflictunder the new administration.”). And it has continuedat the federal and state levels ever since. That this“tradition” of appointing judges on the basis of theirFirst Amendment-protected speech and association“dates at least to” the founding generation is powerfulevidence that First Amendment protection does notreach judicial candidates in the same way it reachespublic-school janitors. See N.L.R.B. v. Noel Canning,573 U.S. 513, 516 (2014). The federal judiciary cannotplausibly entertain lawsuits subjecting these processesto discovery and adjudication.

B. Delaware Has Tailored Its Regulation to ItsOverriding Sovereign Interests

Unlike many states, Delaware has attempted tolimit its officers’ otherwise unlimited discretion overappointments. But this does not diminish its interest in“establishing its own form of government.” Sugarman,

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413 U.S. at 642 (internal quotation marks omitted). Itschoice to be “the only State” with a provision likeArticle IV, Section 3, Cert. Opp. 4, only underscores itsinterest in being free from other states’ choices (or thefederal government’s). Evenwel v. Abbott, 136 S. Ct.1120, 1141 (2016) (Thomas, J., concurring in thejudgment) (observing that states’ status as“laboratories of democracy” “extends to experimentingabout the nature of democracy itself”). Reasonableminds may disagree with Delaware’s approach, but itsright to choose is fundamental to our constitutionalframework.

Because the First Amendment does not constrainstate actors’ discretion over appointments, it alsocannot be read to forbid Delaware’s choice in regulatingthat discretion. It is odd that the court of appeals hopedits ruling will not dissuade Delaware’s officers fromadhering to Article IV, Section 3 in their discretionarychoices and that they will continue to make“bipartisan” appointments from across the spectrum.Pet.App.41a. But if the First Amendment permitsDelaware’s officers to do this of their own will, itequally permits the body politic to demand it of them inthe State’s Constitution. See Snowden v. Hughes, 321U.S. 1, 11 (1944) (“If the action of the Board is officialaction it is subject to constitutional infirmity to thesame but no greater extent than if the action weretaken by the state legislature.”); Gregory, 501 U.S. at460 (“Through the structure of its government, and thecharacter of those who exercise government authority,a State defines itself as a sovereign.”); The FederalistNo. 43, at 292 (J. Madison) (Jacob Cooke ed., 1961)(“Whenever the states may chuse to substitute other

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republican forms, they have a right to do so….”). Thecourt of appeals did not explain how permissible—evenadmirable—state action becomes impermissiblebecause of how the state achieves it.

Indeed, Article IV, Section 3 stands on the firmestground because it is tailored to Delaware’s compellinginterests in judicial independence and balance. Its useof partisan affiliation is, in particular, tailored becauseit is the only workable metric for administering itsinterests. No one has identified a better approach orone that imposes a lighter burden on First Amendmentrights.

1. Delaware’s Interests Are Compellingand the Means Tailored

a. The State’s Interests. The means of Article IV,Section 3 are closely connected to specific, compellingstate ends, which justify any burden on FirstAmendment freedoms. This is so in at least tworespects.

First, a state has a compelling interest in creatingand preserving its own balance of powers. Delaware iswell within its rights to curtail the permissiblediscretion its political branches exercise over judicialappointments. Although most states do not regulatethat discretion, Delaware has the right to view thepolitical branches’ ability to pack the courts withmembers of a favored party as a threat to that balance(whether that view is right or wrong). State judgesreview the actions of the state legislative and executivebranches, and Delaware is free to think that partisanhegemony over all three branches is detrimental to its

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balance of power. This is especially so given thatDelaware’s political branches are frequently controlledby one political party.

Second, Delaware also has a compelling interest inensuring that the judges reflect the mainstreamphilosophical and policy views of the body politic as awhole. In assessing “the basic conception of a politicalcommunity,” Sugarman, 413 U.S. at 647 (internalquotation marks omitted), Delaware has chosen aprocess designed to produce an ideologically balancedbench that reflects the broader philosophical andideological views of the State’s general public. This isevery state’s interest, and it plainly justifies theinquiries routinely made into judicial candidates’political and philosophical speech and association(discussed above, § I.A). Candidates’ right to joinextremist organizations does not vitiate a state’s powerto weed out candidates on this basis—as all statesdo—since this is a strong indicator that a candidate isunlikely to serve the public’s values as a constitutionalofficer.

This interest also justifies Delaware’s limitation ofthe political branches’ discretion. Delaware is amongthe smaller states, and, as the framers recognized, one-party control tends to be more durable “[t]he smallerthe society.” The Federalist No. 10, at 63–64 (J.Madison) (Jacob Cooke ed., 1961). In Delaware’scurrent political environment, conservativephilosophies would be chronically underrepresented,absent a check on the political branches’ discretion. Inother environments, liberal philosophies may otherwisebe underrepresented. In this way, the views of a bare

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majority (or even a predominant majority) may come tobe outsized, reflected in all of the judgeships, eventhough a substantial subset of the population adheresto different views.

As one of 50 laboratories of democracy, Delaware ispermitted to counteract this hegemony by promotingpolitical balance. A counter-majoritarian mechanismlike Delaware’s is a choice against a winner-take-alljudicial system.

One need not agree with this choice to see that,since state actors will make political decisions in allevents, Delaware has a compelling interest directingthose considerations toward these ends, if it so chooses.The court of appeals did not discount these interestsand hoped that Delaware will continue to pursue them.

b. Tailoring. Article IV, Section 3 is tailored tothese ends through the bare-majority and majority-party components. See Pet.App.6a–8a.

The bare-majority components prevent the politicalbranches from appointing more than a bare majority ofjudges “of the same political party,” Pet.App.6a, andthereby employ a simple curtailment on discretion.Limiting political actors’ ability to appoint members oftheir own party is self-evidently tailored to the State’sinterests. Provisions like this are a common means ofpreventing the political branches from obtainingoutsized control over bodies that are intended, likeDelaware’s judiciary, to be independent. Pet.App.31a(listing the various agencies “that use some form ofpolitical balance requirement”). The court of appealsdid not (and could not) find that this provision violates

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the First Amendment on its own.3 SeePet.App.33a–34a.

Meanwhile, the major-party requirementnecessitates that a minority of seats (or half, wherethere is an even number) be held by members of the“other major political party,” Pet.App.6a, and it isappropriately tailored to prevent gaming. Without it, agovernor and friendly state senate could rig the processby appointing favored party members to the majority ofseats and then stacking the remaining seats withpersons known to be favorable to that party, but whoare not its card-carrying members. As the court ofappeals recognized, it would “allow a Governor toappoint a liberal member of the Green Party to aSupreme Court seat when there are already threeliberal Democrats on that bench.” Pet.App.34a. By thesame token, it would allow a conservative Republicangovernor to appoint a conservative member of theLibertarian Party to a bench that already containsthree conservative Republicans.

That result would undermine the State’s interestsin independence and balance. Both interests can onlybe met if judges who are meaningfully different fromthe major-party judges sit on the remaining seats.Allowing the political branches unfettered discretionover the remaining seats undermines the State’sinterests. The court of appeals agreed with this infinding the provisions inseverable. See id. (finding thatthe State purpose was fulfilled “[o]nly with the…major

3 The court of appeals invalidated this provision only because itdeemed it inseverable from the major-party provision.

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political party component”). But it failed to see thatthis very reasoning justified the major-partycomponent under any applicable level of FirstAmendment scrutiny.

2. Party Membership Is the Best AvailableProxy for Achieving These CompellingEnds

Party membership is an effective proxy for all thesepurposes, and it is the only workable proxy. The courtof appeals ignored this in finding party membershipirrelevant to the State’s interests, since (as it correctlyobserved) judges do not go to the bench to effectuate“the political will and partisan goals of the party inpower.” Pet.App.25a. No one here claims otherwise.

But this is beside the point. The question is notwhether party membership is an important componentof, or qualification for, judging. It is instead whetherparty affiliation is an effective and tailored proxy bywhich the State can police partisanship inappointments and pursue the above-described ends. Itplainly is.

a. An Effective Proxy. Party membership is a highlyuseful piece of information. Political parties do morethan send politicians to elected office to achieve a“partisan political interest.” Pet.App.25a (quotationmarks omitted). They also serve the more fundamentalpurpose of facilitating an organized and coherentpolitics—in the broadest, Aristotelian sense. See E.E.Schattschneider, Party Government 1 (1942). Politicalparties facilitate governmental order by organizingsocietal groups into identifiable units. They, in turn,

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vet candidates to high offices and assist the generalpublic and state officers in identifying qualified personswho can honorably and competently participate ingovernance. Party membership is therefore a usefulproxy to help voters identify candidates’philosophies—i.e., what they think is conducive to thegreater good—and predict how they will respond toparticular issues.

Delaware’s purpose in identifying candidates asparty members is not to create an expectation that theywill serve partisan platforms. It is as true in Delawareas everywhere else that judges are not beholden tospecial interests and do not view themselves as partyrepresentatives. (Were it otherwise, “[p]raise for theDelaware judiciary” would not be “nearly universal.”Pet.App.38a.) Nor need judges be partisans for partisanaffiliation to be an effective proxy for the State’spurposes. Even elected officials should, as a matter ofprinciple, serve the greater good and not be beholden toone segment of the electorate at the expense of others.But this principle does not prevent a state fromidentifying candidates as members of a party on aballot or in office. Rather, a state’s “legitimate interestin fostering an informed electorate” allows it to identifycandidates as members of a party. Eu v. San FranciscoCty. Democratic Cent. Comm., 489 U.S. 214, 228 (1989).Party is a helpful indicator of what a candidate is likelyto view as conducive to the good of the whole.

Likewise, a judicial candidate’s party membershipis a good indicator of the candidate’s judicial philosophyand likely views on matters of constitutional andcommon law in future cases. Judges’ separation from

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partisan politics does not exempt them from the morefundamental, broader political sphere, which includesthe administration of law. In turn, the philosophicaland doctrinal approaches a judicial candidate mighttake in future cases are of intense public interest.Political candidates campaign on the judicialphilosophies they believe should be represented on thebench, and televised judicial confirmation hearingshave garnered astounding ratings. Partisan affiliationis a piece of information that the general public findsinformative—because it is informative—and that ishighly relevant to the State’s legitimate goals inappointments. Judges certainly must take the law theyfind it, but party affiliation is a good indicator of whata given judge will find when ambiguities arise.

Moreover, states are allowed to subscribe to thesuspicions, right or wrong, of many political scientiststhat political biases influence judging–oftenunintentionally. See, e.g., Cass R. Sunstein et al., AreJudges Political? An Empirical Analysis of the FederalJudiciary 10 (2006) (“In most of the areas investigatedhere, the political party of the appointing president isa fairly good predictor of how individual judges willvote.”) Thus, states, for example, may legitimately“require that precincts be supervised by two electionjudges of different parties” precisely because of thevalid concern that the judges will be biased towardstheir own parties and perspectives. Branti v. Finkel,445 U.S. 507, 518 (1980). This is a compelling interesteven though—actually, because—the election judgesshould rule on the basis of the law and the facts. Theneutrality expectation is precisely why a State isjustified in pursuing balance and viewpoint diversity;

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the court of appeals’ rationale that judicial non-partisanship defeats the State’s goal of balance isexactly backwards.

In this respect, a state’s conception of its own“political community” merits special deference.Sugarman, 413 U.S. at 647. Delaware does not have toview its judges how the federal Constitution viewsjudges (or, for that matter, how the American BarAssociation views them, see Pet.App.24a). Bycomparison, many states require judges to stand forelection and campaign for office,4 see Republican Partyof Minn. v. White, 536 U.S. 765, 784 (2002), and theyroutinely raise money for supporters for that purpose,see Williams-Yulee v. Fla. Bar, 575 U.S. 433, 445(2015). State courts also engage in highly partisanadjudications, like redistricting cases. See, e.g., Growev. Emison, 507 U.S. 25, 33 (1993) (requiring federaljudicial deference to state courts in the “highly politicaltask” of redistricting). Some even exercise legislativefunctions. See, e.g., Supreme Court of Va. v. ConsumersUnion of U.S., Inc., 446 U.S. 719, 731 (1980). In opiningthat party membership is unrelated to the concerns ofjudging in Delaware, the court of appeals improperlyrendered a value judgment that is Delaware’s to make.

4 A recent survey found that 29 states conduct elections for theirtrial-court seats, and nine employ partisan elections; meanwhile,21 states conduct elections for their state supreme court seats, andsix employ partisan elections. See Brennan Center for Justice,Judicial Selection: An Interactive Map, available athttp://judicialselectionmap.brennancenter.org/?court=Supreme(last visited Jan. 27, 2020).

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b. The Only Proxy. The Delaware Constitutioncannot plausibly reduce a better proxy into law. Itcannot say that only a majority of judges can be“conservative or liberal”; these requirements arehopelessly vague. It cannot identify specific viewpoints(e.g., “originalist” or “living constitutionalist”) becauseissues of the day change and cease to be relevant overtime. Referencing membership in other types ofassociations, like the Federalist Society or AmericanConstitution Society, would create more problems thanit would solve.

None of these alternatives is “appropriate” to ensurethe “effective” achievement of the State’s interests.Branti, 445 U.S. at 518. For that matter, none provides“means significantly less restrictive on associationalfreedoms.” Janus, 138 S. Ct. at 2465 (internalquotation marks omitted). Any other criterion of speechor association burdens First Amendment rights at leastas much as, if not more than, a party-membershipproxy.

By comparison, the major-party requirement isnarrowly tailored. It is set to adjust with thetimes—that is, with new parties and new philosophiesfor which they serve as proxies. This tethers thejudicial appointment process to the organicallydeveloping body politic and to jurisprudentialdevelopments. Similarly, by linking the restriction ondiscretion to the major parties then in power, the proxyties the nominations to objective measures of themainstream, much like a proportional-representationsystem in voting might do. It also provides themaximum opportunity for candidate participation,

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since everyone from the (relatively) far right to the(relatively) far left can be at home in one of theseparties. This is quite different, for example, fromregimes requiring citizens to associate with a singlenarrow segment of the political spectrum, such as byjoining only one available labor union, to obtain ameaningful voice with government decisionmakers. Cf.,generally, Minn. State Bd. for Cmty. Colleges v. Knight,465 U.S. 271 (1984).

The plaintiff has identified no other means toachieve the State’s ends, and it is not even in disputethat this means does meet the State’s ends. The courtof appeals found that “the constitutional provisionswhich we today invalidate have resulted in a politicaland legal culture” of “bipartisan excellence.”Pet.App.41a. This is powerful evidence that thiscentury-old provision has operated as intended and tothe State’s benefit. The court of appeals’ expressencouragement of the same (supposedly)discriminatory decisions proves the incoherence of itsruling.

True, the party-membership proxy is not perfect. Amember of the “other major” party may beclandestinely a majority-party sympathizer who joinedthe “other” party solely for opportunistic reasons—justas an election judge designated a “Democrat” maysecretly be a Republican operative. But see Branti, 445U.S. at 518 (signaling approval of a party requirementfor election judges anyway). But this proxy is stillbetter than any alternatives because it places a steepcost on this gamesmanship. It requires this clandestinecandidate to go so far as to associate formally with the

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opposition party—an act that itself may draw validscrutiny. By comparison, eliminating the major-partyrule, but maintaining the bare-majority rule, wouldallow dominant-party members to be appointed to the“minority” seats simply by choosing not to formallyassociate with the dominant party. Many persons whofavor one party over another simply do that byaccidentally failing to register as members.

Hence, the major-party rule protects againstgamesmanship in a way that an “independence”requirement would not and in a way that the bare-majority rule alone does not. No one, not the districtcourt, not the court of appeals, and not the plaintiff,has identified a better proxy for achieving the State’sends.

C. The First Amendment Interests at IssueAre Comparatively Weak

On the other side of the balance stand the plaintiff’sFirst Amendment interests. The burden on theseinterests is not “severe” and therefore does not overridethe State’s interests. Burdick, 504 U.S. at 434 (internalquotation marks omitted).

First, there appears to be no flat bar on anindependent’s service on the judiciary. The politicalbranches are prohibited from filling more than a baremajority of seats with members of the majority party,but the courts below erred in interpreting this limit ondiscretion as a mandate to appoint major-partymembers. See below § II.A. Although Article IV, Section3 restricts which seats the plaintiff may obtain, whichmay qualify as a burden on First Amendment rights

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(perhaps because not all seats are open at the sametime), this burden is more limited than an outrightprohibition.

Second, the First Amendment interests here existonly on the margins. No one disputes that theplaintiff’s First Amendment views can provedisqualifying, depending on what they are and on theviews of those in the political branches. The plaintiffcan even be excluded for leaving the Democratic Party.And this is the more likely outcome. A Democraticgovernor seems unlikely to appoint a person whodeclines to affiliate with the Democratic Party, and anindependent who cannot persuade the politicalbranches to appoint an independent to the seats overwhich those branches currently exercise unlimiteddiscretion is unlikely to persuade them when theyexercise unlimited discretion over all seats. Thus, asfar as the plaintiff’s asserted rights are concerned, thedifference between the regime that exists and the onehe wants is small, perhaps indistinguishable. (Bycomparison, the difference is significant as far as theState’s interests are concerned.)

Third, the positions here are relatively few innumber, and Article IV, Section 3 therefore does notnegatively impact a broad segment of the populace. The“widespread impact” of a burden on First Amendmentrights is a factor favoring higher scrutiny, Nat’lTreasury Emps. Union, 513 U.S. at 468, and therestricted impact here counsels in favor of a lowerstandard. The restrictions do not impact anyone’sability to earn a livelihood, since lawyers with areasonable shot at a judgeship are presumably already

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successful attorneys. Cf. Janus, 138 S. Ct. at 2461(striking down burden on the rights of “35,000 publicemployees”).

To be clear, these restrictions would be deemedburdens on First Amendment rights in mostcircumstances, and the Court may be justified intreating them as burdens here.5 But this Court’s FirstAmendment jurisprudence requires a balance, and theplaintiff’s interest here, under these uniquecircumstances, is comparatively light and the State’s iscomparatively weighty. The balance here favors theState.

D. Upholding Article IV, Section 3 Will NotImpact Other Applications of FirstAmendment Doctrine; Striking It DownWill Raise a Host of New Questions

The State’s highly unique interests here, and theindividual’s muted interests, exist only in the mostlimited circumstances, and a ruling in the State’s favorhas no chance of upsetting the settled application oflaw in other areas. On the other hand, a ruling for theplaintiff may threaten established practice, if notsettled law, because it risks exposing the judicial-

5 This would be the difference between reversing under FirstAmendment balancing, as the RNC proposes here, and reversingunder the policymaking exception, as the petitioner proposes in hislead merits argument. The latter option would result in a bright-line rule exempting judicial-appointment cases from FirstAmendment scrutiny, and it finds support in much of the RNC’sreasoning here. It may, however, be more prudent for the Court toreverse under the more narrow balance-of-interests inquiry andleave the policymaking exception for development in future cases.

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appointment process to federal oversight—a seriousinvasion of state sovereignty.

1. Limited Impact of Reversal. This case isdistinguishable from practically every FirstAmendment dispute that might come before the Court,save those by aspirants claiming a First Amendmentright to a gavel. Allowing Delaware to restrict its ownofficers’ political discretion over appointments will nottranslate into broad rules allowing widespread (or evenisolated) discrimination in public employment. A rulingupholding Article IV, Section 3 may not even apply toother higher-level offices that are not coreconstitutional offices or are not subject to alongstanding tradition, traceable to the foundinggeneration, of political appointments. Cf. Town ofGreece, N.Y. v. Galloway, 572 U.S. 565, 577 (2014)(“Any test the Court adopts must acknowledge apractice that was accepted by the Framers and haswithstood the critical scrutiny of time and politicalchange.”).

And the State’s choice here is not like other choicesthat would rightly trigger skepticism. This is not at alllike a requirement that all judges join one identifiedparty; that would work against the compelling interestsin independence and balance Delaware has identifiedhere and could not be justified under any level ofscrutiny. For that matter, Article IV, Section 3 is notlike a requirement that a judge or other officer belongto no party, since an “independence” requirement is anespecially bad proxy for actual independence—therebeing no way to ensure that someone claiming no

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affiliation is not, in fact, among the most extreme ofpartisans.6

2. Potentially Unlimited Scope of Affirmance. Onthe other hand, an affirmance would raise troublingquestions. The First and Fourteenth Amendments donot normally recognize a distinction between a but-forcause—which certainly occurs in judicialnominations—and a codified classification. See, e.g.,Hunt v. Cromartie, 526 U.S. 541, 546 (1999); Rutan v.Republican Party of Ill., 497 U.S. 62, 77–78 (1990)(“What the First Amendment precludes thegovernment from commanding directly, it alsoprecludes from accomplishing indirectly.”). Thus,subjecting Article IV, Section 3 to strict scrutiny wouldcall into question all political considerations in alljudicial-appointment processes and may subject thoseprocesses to judicial review—including through broaddiscovery. This would contravene bedrock federalismand separation-of-powers principles.

The court of appeals did little to mitigate thispotentially revolutionary aspect of its ruling. It said theruling would not prevent “a governor [from] asking ajudicial candidate about his philosophy on sentencing”but did not clarify whether it would allow a governor toreject the applicant because of the answer given.Pet.App.29a. Worse, the court of appeals explained thatits ruling may prevent a governor from “posting a sign

6 Thus, the Court need not decide here whether a state mayprohibit persons who belong to a political party from serving on aredistricting commission. See Daunt v. Benson, No. 1:19-cv-00614,2019 WL 6271435 (W.D. Mich. Nov. 25, 2019).

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that says ‘Communists need not apply.’” Pet.App.29a.But this is quite close to what administrations do—andalways have done: decline even to consider candidatesbased on political affiliations and speech. Manyadministrations would not consider a Communist, notto mention an active Klansman.

Seeking a line between permissible andimpermissible political considerations in thenominations process is like seeking that line inlegislative-redistricting process. Rucho v. CommonCause, 139 S. Ct. 2484, 2497 (2019). The process itself“turns out to be root-and-branch a matter of politics.”Vieth, 541 U.S. at 285 (plurality opinion). Judicialselection is inherently political, it is entrusted topoliticians, and there is no judicially manageablestandard differentiating valid and invalid politicalconsiderations in the appointments process.

Whether or not these problems justify exemptingArticle IV, Section 3 from any scrutiny, they at leastcall for an appropriately tailored standard and judicialintrusion in only the most extreme cases. Any decisioninvalidating Article IV, Section 3 that does not providecrystal-clear limits risks opening the door toinnumerable new lawsuits by disappointed judicialcandidates, complete with unlimited funding by specialinterests looking to rig the judiciary for their own ends.The Court should avoid this at all costs.

Where, as here, the political-party requirement istailored toward balance and independence, there is noextreme case and no cause for federal intervention intothis most sensitive of state matters.

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II. The Plaintiff Cannot Show Injury Where HeMay Obtain an Appointment , orRedressability Where a Favorable RulingWould Allow Him Still To Be Rejected forPurely Political Reasons

The plaintiff’s claim fails for the additional reasonthat he lacks standing. He cannot show injury in factwithout first applying to a judicial office. And he cannotshow redressability because no injunction can protecthim from the political “discrimination” he claims as hisinjury.

A. Injury in Fact. The plaintiff has not sought ajudicial appointment and may never do so. The courtbelow found merely that “he would consider applyingfor a judicial seat on any of Delaware’s fiveconstitutional courts.” Pet.App.14a. But an assertedinterest in sometime—maybe—seeking a seat isacademic and insufficient to confer standing. See, e.g.,Lujan v. Defenders of Wildlife, 504 U.S. 555, 564(1992); Warth v. Seldin, 422 U.S. 490, 503 (1975).

The court of appeals excused the plaintiff fromtendering an application before suing because itbelieved the effort would be “futile.” Pet.App.15a. Butit may not be futile; Article IV, Section 3 may permit anindependent to be appointed to most seats. Its bare-majority rule merely requires that “not more than one-half of the members of all such offices shall be of thesame political party.” Del. Const., art. IV, § 3 (“Second,”“Third,” “Fourth,” “Fifth,” and “Sixth” paragraphs).This language does not prevent the appointment of anindependent; it operates under current circumstancesmerely to limit the number of Democratic members on

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these seats, rather than as a bar on non-Democrats.Pet.App.34a.

To be sure, the adjacent major-party components ofsome paragraphs (i.e., the “Second” and “Third”) setaside the “remaining” seats for “members” of the “othermajor political party”—here, the Republican Party. Thedecision below apparently read the phrase “other majorparty” to link with the phrase “same major politicalparty” and together to create a binary structure, so thatall judges who are not Democrats must be Republicanand vice versa. See Pet.App.34a. But that is not theonly reading, or even the best. Both phrases link to theidentical verbiage “such offices,” which seems to signifya static number of seats for members of the “othermajor party,” not a fluid number depending on howmany judges of the “same political party” areappointed. Under current circumstances, a majority of“offices” (or half, if the number is even) may be held byDemocrats but may also be held by independents; onlya minority (or half, if the number is even) are set asidefor Republicans.

In fact, the court of appeals admitted that the bare-majority provision can, standing alone, “be interpretedto allow a Governor to appoint a liberal member of theGreen Party” to a judgeship. Pet.App.34a. It cancontinue to be read this way even after the major-partyprovision is tacked on; it is not necessary to read themajor-party provision as injecting a different, morerestrictive meaning into the bare-majority provision.

And there is still more ambiguity. For one thing, thedifferent courts are governed by different language. Forexample, the “Second” paragraph governing the

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Delaware Superior Court contains no major-partycomponent when it has an “even number of seats,” eventhough a major-party component kicks in when it hasan “odd number” of seats. Meanwhile, the major-partycomponent of the “Third” paragraph, which applies tothe Court of Chancery, has in practice been ignored: in1973, for instance, Democrats held all of the court’sseats. William T. Quillen & Michael Hanrahan, AShort History of the Court of Chancery (1792–1992) atn.105 (1992).7 Even the language of the “First”paragraph, which seems to require that “three of thefive Justices” of the Delaware Supreme Court must befrom the dominant “major political party” (i.e.,Democrats) and “two” must be of the other majorpolitical party (i.e., Republicans), may be amenable toa not-strictly-literal reading—in light of the provision’sstructure, the apparent overlap with the “Third”paragraph, and the overriding purpose of limitingdiscretion, rather than of mandating that politiciansappoint members of their own party (as they needhardly be told to do). See, e.g., Bridgeville Rifle & PistolClub, Ltd. v. Small, 176 A.3d 632, 638 (Del. 2017)(identifying purpose of constitutional provision asrelevant to its meaning). Even this Court does notalways assign a constitutional provision its strictest,literal meaning. See, e.g., Tenn. Wine & SpiritsRetailers Ass’n v. Thomas, 139 S. Ct. 2449, 2462 (2019).The “First” paragraph, then, may be read as permissiverather than as mandatory.

7 reprinted at https://courts.delaware.gov/chancery/history.aspx(last visited Jan. 27, 2020).

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All of this means that it is unknown whether theplaintiff might not only be eligible for a seat, but alsoobtain one—if he would only try. The court of appealsassumed the most restrictive possible interpretation,taking as a given that this web of differently wordedcomponents operate as an outright bar onindependents. But federal courts should do theopposite: they should generally refrain from“unnecessary ruling[s]” that may be “supplanted by acontrolling decision of a state court.” R.R. Comm’n ofTex. v. Pullman Co., 312 U.S. 496, 500 (1941). TheDelaware Supreme Court has not definitely construedArticle IV, Section 3 as forbidding an independent fromobtaining a judicial seat, and the Delaware judiciaryremains open to the plaintiff and able to provide relief,through either a more limited interpretation or anadjudication of the First Amendment issues.8 At a bareminimum, the plaintiff should at least apply so that itwill be clearer how this provision would be construed inhis case.

B. Redressability. The plaintiff also cannot showredressability because an injunction is unlikely toincrease his odds of obtaining an appointment, and itwould not even prevent the plaintiff from being rejectedfor purely political reasons—even for not being aDemocrat.

8 Although the Delaware Supreme Court declined a request for anadvisory opinion on this subject, In re: Request for an Opinion ofthe Justices, 155 A.3d 371, 373 (Del. 2017), the Delaware courtswould presumably treat a lawsuit differently.

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For all anyone knows, the plaintiff’s application, iftendered, would be rejected for reasons unrelated to hisparty affiliation. Judgeships are not easy to obtain.There are over 3,200 attorneys in the Delaware LegalDirectory, any of whom may well aspire to be a judgeand may be more qualified or have more support fromthe appointment authorities.9

The governor may have any number of reasons todecline to nominate, or the senate to confirm, theplaintiff. In fact, the injunction below does not preventthe governor from rejecting the plaintiff because he isnot a Democrat. It only makes it easier, not harder, forthe governor to reject non-Democrats.

Accordingly, the plaintiff’s injury cannot beredressed in this lawsuit. There can be no Article IIIstanding if, even after the plaintiff prevails, theplaintiff’s redress still hinges on the “unfettered choicesmade by independent actors not before the courts….”ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989)(opinion of Kennedy, J.); see also Lujan, 504 U.S. at562; Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,45–46 (1976). A federal court cannot compel thegovernor to appoint the plaintiff or even to read hisapplication or to interview him. Nor can a federal courtrequire any of these things from Delaware’s senate.Nor does the injunction below limit their discretion toreject the plaintiff. It adds no meaningful likelihood tothe plaintiff’s hope of becoming a judge. Because there

9 Delaware State Bar Association, Legal Directory, available athttps://www.dsba.org/publications/delaware-legal-directory/ (lastvisited Jan. 27, 2020).

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is no redress available, the case should be dismissed forlack of standing.

CONCLUSION

The decision below should be reversed.

Respectfully submitted,

Justin RiemerChristopher WhiteRepublican National Committee310 1st Street SEWashington, DC 20003(202) 863-8626

Patrick T. LewisBaker & Hostetler LLPKey Tower127 Public SquareSuite 2000Cleveland, OH 44114(216) 861-7096

Richard B. Raile Counsel of Record E. Mark BradenKatherine L. McKnightTrevor M. StanleyBaker & Hostetler LLP1050 Connecticut Ave., N.W.Suite 1100Washington, DC 20036(202) 861-1711rraile@bakerlaw.com

Counsel for Amicus Curiae