Friedlander, then a moderate Republican, filed that thought away and became a prominent Delaware corporate lawyer, specializing in plaintiffs’ cases challenging mergers and acquisitions or other actions by corporate boards. Over time, the Republican Party swung to the right, and by 2012, he decided he could not remain a member.
Many in Delaware had made the same decision. Until 2000, Delaware was considered a swing state in presidential elections, usually casting its three electoral votes to the eventual winner. The state is now a deeper blue. It has not voted for a Republican presidential candidate since 1988; Democratic candidates now frequently carry Delaware by wide margins. (Barack Obama twice received nearly 60 percent of the vote, while Hillary Clinton carried the state by 11 percentage points.) Statewide offices are wholly held by Democrats, as is the state legislature. Republican Party registration, at 28 percent, is only a few points ahead of “unaffiliated.” Did this party deserve reserved seats on the bench?
Julian E. Zelizer: How conservatives won the battle over the courts
In a 2016 article for Arizona Law Review, Friedlander asked, “Is Delaware’s ‘Other Major Political Party’ Really Entitled to Half of Delaware’s Judiciary?” He argued that the major-party provision “is at odds with United States Supreme Court precedent [on the First Amendment right to ‘free association’ and other free-speech rights], and that, if challenged, it likely would not survive heightened scrutiny.” He added, however, that “no similar weight of authority bears on the constitutionality” of the bare-majority requirement, and that “I express no opinion on whether a First Amendment attack on the Bare-Majority Feature … is viable.”
That brings us to James R. Adams, a longtime Delaware state employee and government lawyer who had himself been on a political journey. Adams, born in 1951, was for many years a state probation officer, then attended the night program at Delaware Law School, graduating in 2000. He worked for the Delaware attorney general’s office. From 2007 to 2015, the state A.G. was Beau Biden, former Vice President Joe Biden’s son. Adams admired Biden, and when Biden left the office in 2015 to run for governor, Adams hoped to follow him to a job at some level in a Biden administration. But Biden died of cancer in May of that year.
Adams retired from his state job and then considered his next move. “I’d thought about being a judge for a long while,” he told me. But though he considered himself qualified, he held back because “the process is so overwhelmingly political” that “everyone in the Delaware legal community knows who the next judge is going to be” long before the appointment is made.
Complicating his quest was his disgust with the state Democratic Party, to which he had belonged for years. After 2016, Adams said, he concluded that the state party was dominated by business interests, while he had moved into the Bernie Sanders progressive left. He quit the party, then faced the requirement of party membership even to apply for one of the seats on the top three courts; the bare-majority rule meant that some openings on the Family Court were closed to him, despite his expertise in that area. Researching the constitutional issue, he found Friedlander’s article and called him. After that, he recruited David Finger, another top corporate lawyer, to handle the challenge. That February, he filed suit against the state, seeking a federal injunction against the “provision … mandating political balance on the courts” as a violation of the First Amendment’s guarantee of freedom of association. A federal district judge, then a three-judge panel of the Third Circuit, agreed.