Judicial selection in Delaware

Judicial selection in Delaware
Delaware Supreme Court
Method:	Assisted appointment
Term:	12 years
Superior Court of Delaware
Method:	Assisted appointment
Term:	12 years
Delaware Court of Chancery
Method:	Assisted appointment
Term:	12 years
Delaware Family Court
Method:	Assisted appointment
Term:	12 years
Delaware Court of Common Pleas
Method:	Assisted appointment
Term:	12 years

Judicial selection refers to the process used to select judges for courts. At the state level, methods of judicial selection vary substantially in the United States, and in some cases between different court types within a state. There are six primary types of judicial selection: partisan and nonpartisan elections, the Michigan method, assisted appointment, gubernatorial appointment, and legislative elections. To read more about how these selection methods are used across the country, click here.

This article covers how state court judges are selected in Delaware, including:

• Delaware Supreme Court,
• Delaware Superior Court,
• Delaware Chancery Court, and
• Limited jurisdiction courts

As of March 2023, judges for all courts in the state except the Delaware Justice of the Peace Courts and the Delaware Alderman's Courts were selected through the assisted appointment method, where the governor selects a nominee from a list provided by a nominating commission. Judges of the Delaware Justice of the Peace Courts were selected through gubernatorial appointment, where the governor directly selects judges. Alderman's Court judges were appointed by the governing body of their municipality.

Delaware's constitution requires that there be an even partisan balance on each state court. For courts with an even number of judges, this means that no more than half of the seats on the court may be held by judges who are members of the same political party. For courts with an odd number of judges (including the state supreme court), this means that no more than a bare majority of seats on the court may be held by members of the same party. For example, a court with five seats could not have any more than three judges who are members of the same party.

Click here to notify us of changes to judicial selection methods in this state.

Delaware Supreme Court

See also: Delaware Supreme Court

The five justices on the Delaware Supreme Court are selected by an assisted appointment method, whereby a judicial nominating commission screens candidates and submits at least three names to the governor. The governor may decline to appoint someone from this list and instead request a supplemental list, but ultimately a name from one of these lists must be submitted to the Delaware Senate. The commission is made up of 12 members, eleven of which are appointed by the governor (including at least four lawyers and at least three non-lawyers). The president of the Delaware State Bar Association nominates the twelfth member, who is added to the commission with the governor's approval. The governor designates the commission's chairperson.

Appointed justices serve for 12 years, at which point they must apply to the commission for reappointment. The commission must recommend sitting judges for reappointment unless two-thirds or more of the committee object. Reappointed judges also serve 12-year terms. Delaware is relatively unique in that appointees' initial terms are no shorter than their subsequent ones

Delaware's constitution requires that there be an even partisan balance on each state court. For courts with an even number of judges, this means that no more than half of the seats on the court may be held by judges who are members of the same political party. For courts with an odd number of judges (including the state supreme court), this means that no more than a bare majority of seats on the court may be held by members of the same party. For example, a court with five seats could not have any more than three judges who are members of the same party.

Qualifications

To serve on this court, a judge must:

• be a state resident; and
• be learned in the law.

Chief justice

The process for selecting a chief judge or justice for the supreme, superior, and chancery courts is identical to the process used to select associate judges. The governor chooses an appointee from a list compiled by the judicial nominating commission, and if the state Senate gives consent, the appointee will serve a 12-year term as chief.

Vacancies

See also: How vacancies are filled in state supreme courts

If a midterm vacancy occurs on the court, the seat is filled as it normally would be if the vacancy occurred at the end of a judge's term. A judicial nominating commission recommends qualified candidates to the governor, and the governor selects a successor from that list with Senate approval. The new appointee serves a 12-year term.

The map below highlights how vacancies are filled in state supreme courts across the country.

Delaware Superior Court

See also: Delaware Superior Court

The 21 judges on the Superior Court of Delaware are selected by an assisted appointment method whereby a judicial nominating commission screens candidates and submits at least three names to the governor. The governor may decline to appoint someone from this list and instead request a supplemental list, but ultimately a name from one of these lists must be submitted to the Delaware Senate. The commission is made up of 12 members, eleven of which are appointed by the governor (including at least four lawyers and at least three non-lawyers). The president of the Delaware State Bar Association nominates the twelfth member, who is added to the commission with the governor's approval. The governor designates the commission's chairperson.

Appointed justices serve for 12 years, at which point they must apply to the commission for reappointment. The commission must recommend sitting judges for reappointment unless two-thirds or more of the committee object. Reappointed judges also serve 12-year terms. Delaware is relatively unique in that appointees' initial terms are no shorter than their subsequent ones

Delaware's constitution requires that there be an even partisan balance on each state court. For courts with an even number of judges, this means that no more than half of the seats on the court may be held by judges who are members of the same political party. For courts with an odd number of judges (including the state supreme court), this means that no more than a bare majority of seats on the court may be held by members of the same party. For example, a court with five seats could not have any more than three judges who are members of the same party.

Qualifications

To serve on this court, a judge must:

• be a state resident; and
• be learned in the law.

President judge

The process for selecting a president judge for the Delaware Superior Court is identical to the process used to select resident judges. The governor chooses an appointee from a list compiled by the judicial nominating commission, and if the state Senate gives consent, the appointee will serve a 12-year term as president.

Vacancies

See also: How vacancies are filled in state supreme courts

If a midterm vacancy occurs on the court, the seat is filled as it normally would be if the vacancy occurred at the end of a judge's term. A judicial nominating commission recommends qualified candidates to the governor, and the governor selects a successor from that list with Senate approval. The new appointee serves a 12-year term.

Delaware Chancery Court

See also: Delaware Court of Chancery

There are seven members on the Delaware Court of Chancery (one chancellor and six vice-chancellors). These judges are selected by an assisted appointment method whereby a judicial nominating commission screens candidates and submits at least three names to the governor. The governor may decline to appoint someone from this list and instead request a supplemental list, but ultimately a name from one of these lists must be submitted to the Delaware Senate. The commission is made up of 12 members, eleven of which are appointed by the governor (including at least four lawyers and at least three non-lawyers). The president of the Delaware State Bar Association nominates the twelfth member, who is added to the commission with the governor's approval. The governor designates the commission's chairperson.

Appointed justices serve for 12 years, at which point they must apply to the commission for reappointment. The commission must recommend sitting judges for reappointment unless two-thirds or more of the committee object. Reappointed judges also serve 12-year terms. Delaware is relatively unique in that appointees' initial terms are no shorter than their subsequent ones

Delaware's constitution requires that there be an even partisan balance on each state court. For courts with an even number of judges, this means that no more than half of the seats on the court may be held by judges who are members of the same political party. For courts with an odd number of judges (including the state supreme court), this means that no more than a bare majority of seats on the court may be held by members of the same party. For example, a court with five seats could not have any more than three judges who are members of the same party.

Qualifications

To serve on this court, a judge must:

• be a state resident; and
• be learned in the law.

Chancellor

The process for selecting a chancellor for the chancery court is identical to the process used to select associate judges. The governor chooses an appointee from a list compiled by the judicial nominating commission, and if the Senate gives consent, the appointee will serve a 12-year term as chancellor.

Vacancies

See also: How vacancies are filled in state supreme courts

If a midterm vacancy occurs on the court, the seat is filled as it normally would be if the vacancy occurred at the end of a judge's term. A judicial nominating commission recommends qualified candidates to the governor, and the governor selects a successor from that list with Senate approval. The new appointee serves a 12-year term.

Limited jurisdiction courts

Delaware has four types of limited jurisdiction courts: the Delaware Family Court, the Delaware Justice of the Peace Courts, the Delaware Court of Common Pleas, and the Delaware Alderman's Courts.

Delaware Court of Common Pleas

Judges of the Delaware Court of Common Pleas are each appointed to 12-year terms by the governor. To serve on this court, a judge must be a state resident and have practiced law in the state for five years.

Delaware Family Courts

Judges of the Delaware Family Court are each appointed to 12-year terms by the governor. To serve on this court, a judge must be a state resident, have practiced law in the state for five years, must be knowledgeable in law, and interested in family and child problems .

Justice of the Peace Courts

Judges of the Delaware Justice of the Peace Courts are each appointed to terms of varying length by the governor. Initial terms last four years, second and third terms last six years, and all following terms last eight years. The chief magistrate of the Delaware Justice of the Peace Courts is selected in the same way as the judges of the supreme, superior, and chancery courts. The chief magistrate serves a 12-year term.

Alderman's Courts

Judges on the Delaware Alderman's Courts are appointed to terms of varying lengths by the governing body of their municipality. The requirements to serve on this court vary by municipality.

History

Below is a timeline noting changes to judicial selection methods in Delaware, from the most recent to the earliest.

• 2020: In Carney v. Adams, the Supreme Court of the United States ruled respondent James Adams, a Delaware lawyer, did not have standing to sue the governor over the state constitution's partisan parity provision. Click here for more information.
• 2019: A three-judge panel from the Third Circuit Court of Appeals upheld Judge Thynge's 2017 ruling that partisan parity on trial courts was unconstitutional.
• 2017: Magistrate Judge Mary Pat Thynge ruled the state constitution's partisan balance requirements of appellate and general jurisdiction trial courts were unconstitutional.
• 1977: A judicial nominating commission was established by Executive Order Number 4. As of March 2023, each governor since 2017 had given orders maintaining a similar commission.
• 1951: The Delaware Supreme Court was created by constitutional amendment.
• 1897: Judges of all courts were to be appointed by the governor with Senate confirmation. Tenure was changed from "good behavior" to 12-year terms.
• 1831: Established that judges of all courts were to be appointed by the governor to serve for life.
• 1792: Established that judges of all courts were to be appointed by the governor to serve for life, except for justices of the peace who would be appointed to seven-year terms.
• 1776: The court of appeals was established to be the court of last resort and composed of seven justices. Each legislative house was to appoint three justices, and the president, elected by the General Assembly, would preside over the court. Except for the president, all justices served for life. Court of Common Pleas judges were to be appointed by the president and the General Assembly by joint ballot measures.

Courts in Delaware

In Delaware, there is one federal district court, a state supreme court, and trial courts with both general and limited jurisdiction. These courts serve different purposes, which are outlined in the sections below.

Click a link for information about that court type.

• Federal courts
• State supreme court
• Trial courts

The image below depicts the flow of cases through Delaware's state court system. Cases typically originate in the trial courts and can be appealed to courts higher up in the system.

The structure of Delaware's state court system.

Selection of federal judges

United States district court judges, who are selected from each state, go through a different selection process from that of state judges.

The district courts are served by Article III federal judges, who are appointed for life during good behavior. They are usually first recommended by senators (or members of the House, occasionally). The President of the United States nominates judges, who must then be confirmed by the United States Senate in accordance with Article III of the United States Constitution.

In other states

Each state has a unique set of guidelines governing how they select judges at the state and local level. These methods of selection are:

Election

• Partisan election: Judges are elected by the people, and candidates are listed on the ballot alongside a label designating political party affiliation.
• Nonpartisan election: Judges are elected by the people, and candidates are listed on the ballot without a label designating party affiliation.
• Michigan method: State supreme court justices are selected through nonpartisan elections preceded by either partisan primaries or conventions.
• Retention election: A periodic process whereby voters are asked whether an incumbent judge should remain in office for another term. Judges are not selected for initial terms in office using this election method.

Assisted appointment

• Assisted appointment, also known as merit selection or the Missouri Plan: A nominating commission reviews the qualifications of judicial candidates and submits a list of names to the governor, who appoints a judge from the list. At the state supreme court level, this method is further divided into the following three types:
  • Bar-controlled commission: The state Bar Association is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees that they must choose from.
  • Governor-controlled commission: The governor is responsible for appointing a majority of the judicial nominating commission that sends the governor a list of nominees they must choose from.
  • Hybrid commission: The judicial nominating commission has no majority of members chosen by either the governor or the state bar association. These commissions determine membership in a variety of ways, but no institution or organization has a clear majority control.

Direct appointment

• Court appointment: Judges are selected by judges in the state judiciary.
• Gubernatorial appointment: Judges are appointed by the governor. In some cases, approval from the legislative body is required.
• Legislative election: Judges are selected by the state legislature.
• Municipal government selection: Judges are selected by the governing body of their municipality.

Click a state on the map below to explore judicial selection processes in that state.

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See also

State courts	Appointment methods	Election methods
State supreme courts Intermediate appellate courts Trial courts	Assisted appointment Court appointment Gubernatorial appointment Legislative election Municipal government selection	Partisan election Nonpartisan election Michigan method

External links

• Delaware Courts Judicial Branch

Footnotes

Delaware courts

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Federal courts:

Third Circuit Court of Appeals • U.S. District Court: District of Delaware • U.S. Bankruptcy Court: District of Delaware

State courts:

Delaware Supreme Court • Superior Court of Delaware • Delaware Court of Chancery • Delaware Family Court • Delaware Court of Common Pleas • Delaware Justice of the Peace Courts • Delaware Alderman's Courts

State resources:

Courts in Delaware • Delaware judicial elections • Judicial selection in Delaware