Delaware Judges: Qualifications, Nomination, and Partisan Balance

Delaware judges are selected by appointment, not election: the governor nominates candidates from a shortlist prepared by the Judicial Nominating Commission, and the state senate confirms them to 12-year terms.¹ The process applies across the constitutional courts, from the Justice of the Peace Court up through the Supreme Court and the Court of Chancery, the latter being the forum where most of the country’s major corporate disputes are decided.²

Who Qualifies to Serve

Article IV, Section 2 of the Delaware Constitution sets three baseline requirements for any constitutional court judgeship. A candidate must be a citizen of Delaware, must reside in the state, and must be “learned in the law.”¹ The constitution does not define that last phrase. In practice it means holding a law degree and admission to the bar. The same minimums apply uniformly from the Court of Common Pleas up to the Supreme Court.

Beyond those minimums, the Judicial Nominating Commission applies qualitative standards set out in Executive Order 7. The order directs it to find candidates “of the highest caliber, who by intellect, work ethic, temperament, integrity and ability demonstrate the capacity and commitment to sensibly, intelligibly, promptly, impartially and independently interpret the laws and administer justice.”³ No fixed number of years in practice is written into either the constitution or the order, but thin resumes rarely survive the commission’s review.

The Judicial Nominating Commission

Every judicial appointment runs through the Judicial Nominating Commission. It has 15 members. The governor appoints 14, and the president of the Delaware State Bar Association appoints one with the governor’s approval. At least four of the governor’s picks must be members of the Delaware Bar, and at least three must be non-lawyers. The governor also designates a chair and vice-chair from the membership.⁴

When a seat opens or an opening is anticipated, the governor notifies the commission’s chair and the clock starts. The commission then has 60 days to deliver a list of at least three qualified candidates willing to serve. If the governor finds no acceptable name on that list, the governor can request a supplementary list of at least three more candidates, due within 30 days. The nominee may come from either list.³

One exception applies to sitting judges seeking reappointment at the end of a term. The commission may send the governor only that sitting judge’s name. If other applicants have put in for the same seat, however, the governor may ask for up to three additional names so the sitting judge can be compared against outside candidates.³

Everything the commission does about a candidate is confidential. Deliberations and records are kept private and can be released only at the governor’s direction.³ That shields applicants from political pressure during the vetting but also limits what the public ever sees about how finalists were chosen.

Senate Confirmation

After the governor picks a nominee from the commission’s list, the nomination goes to the Delaware State Senate. A committee holds a hearing where the nominee answers questions about their background and legal philosophy. If the nomination advances, the full Senate votes, and a simple majority of all elected senators is required to confirm.¹ A confirmed judge then takes an oath to uphold the state and federal constitutions.

If the Senate declines to confirm, the governor can return to the commission for another supplementary list, so a single rejection does not stall the seat indefinitely. Contested vacancies can still take months to fill.

The Partisan Balance Rule

Delaware is unusual in writing partisan balance directly into its judiciary. Article IV, Section 3 of the state constitution caps how many judges on a given court may belong to the same political party. On the five-seat Supreme Court, no more than three justices may share a party. The same bare-majority logic extends to the Superior Court, Court of Chancery, Family Court, and Court of Common Pleas: odd-numbered courts allow only a bare majority from one party, and even-numbered courts must split evenly.¹

Historically this provision did more. A separate “major party” clause required that the remaining seats be filled specifically by members of the other major party, which effectively barred independents and third-party members from the bench. James Adams, a registered independent, challenged that requirement. The Third Circuit struck it down, but in 2020 the U.S. Supreme Court reversed on standing grounds in Carney v. Adams, finding Adams had not shown he was ready to apply for a near-term vacancy, and ordered the case dismissed without reaching the merits.⁵ In early 2023, Governor John Carney entered a consent judgment in the District Court of Delaware agreeing that the major-party requirement violates the First Amendment.⁶ The bare-majority cap remains in force. The seats not held by the majority party, however, no longer need to go to the other major party, so independents and third-party members are now eligible.

Terms, Reappointment, and Retirement

Judges on every major Delaware court serve 12-year terms. That applies to the Supreme Court, Court of Chancery, Superior Court, Family Court, Court of Common Pleas, and the Chief Magistrate of the Justice of the Peace Court.¹ Twelve years is among the longest fixed judicial terms in the country, long enough to insulate judges from short-term political pressure while still forcing periodic review.

Delaware imposes no mandatory retirement age and no term limits.⁷ A judge who wants to continue past a term’s end must reapply through the Judicial Nominating Commission. The commission evaluates the judge’s prior performance, the governor decides whether to reappoint, and the Senate must confirm the reappointment the same way it would a new one. A judge who does not seek or does not receive reappointment simply leaves when the term ends.

Discipline and Removal

Between appointments, judges are accountable to the Court on the Judiciary, created by Article IV, Section 37 of the state constitution to investigate ethical misconduct and disability complaints.¹ Its members are the Chief Justice, the other Supreme Court justices, the Chancellor, the President Judge of the Superior Court, the Chief Judge of the Family Court, the Chief Judge of the Court of Common Pleas, and the Chief Magistrate of the Justice of the Peace Court. Delaware’s senior judges police the rest of the bench.

A judge may be censured, removed, or involuntarily retired for:

Willful misconduct in office.
Willful and persistent failure to perform duties.
Committing an offense involving moral turpitude after appointment.
Persistent violation of the Canons of Judicial Ethics adopted by the Supreme Court.
A permanent mental or physical disability preventing performance of duties, which results in retirement rather than removal.

Before any sanction, the judge must receive written charges and a full opportunity to be heard. Removal or involuntary retirement requires a two-thirds vote of the Court on the Judiciary’s members.¹ Proceedings are private, and all records except a final order of removal or retirement stay confidential unless the judge requests otherwise. Once removed, the judge loses all authority and privileges immediately, and the seat is treated as vacant.

1
Delaware Code Online. Delaware Constitution Article IV – Judiciary
2
Delaware Courts. Court of Chancery
3
State of Delaware. Executive Order 7 – Preservation of Delaware’s Independent Judiciary and Continuance of the Judicial Nominating Commission
4
Ballotpedia. Delaware Judicial Nominating Commission
5
Justia Supreme Court. Carney v. Adams, 592 U.S. ___ (2020)
6
State Court Report. The Delaware Constitution: The First of Firsts
7
State Court Report. Delaware