Lawmakers will elect nine judges to newly created judicial seats next month in the largest and most contested judicial election in almost two decades.
Critics aren’t pleased. They say legislators should not elect judges.
It is the first time lawmakers have created new judicial seats in 16 years.
Lawmakers added the nine new seats — three Circuit Court and six Family Court positions — earlier this year to relieve the state’s massive backlog of cases, especially in the Family Court. All the judgeships are at-large seats, meaning the judges elected will travel around the state to hear cases.
More than 59 people applied for the nine new positions, leading to a week-long public hearing by the Judicial Merit Selection Commission. The commission eliminated 34 of the candidates, leaving 25 finalists vying for nine seats including:
• Two former U.S. attorneys, Rene Josey and Deborah Barbier
• Two former Republican lawmakers, R. Keith Kelly of Spartanburg and James McGee III of Florence
• Maite Murphy, a master-in-equity from Dorchester and the wife of state Rep. Chris Murphy, R-Dorchester.
‘Bobby Harrell’s brother?’
South Carolina is one of two states (Virginia is the other) where lawmakers elect judges to interpret the laws that lawmakers pass. That method of selecting judges is controversial with some who say judges should be nominated by the governor and confirmed by the state Senate.
Fueled by the indictment and resignation of former Lt. Gov. Ken Ard and the unprecedented ethics investigation of Gov. Nikki Haley earlier this year, S.C. lawmakers are poised to pass the state’s first major ethics overhaul in more than 20 years.
But so far, no lawmakers are talking seriously about changing how the state elects its judges, to the consternation of some government watchdog groups.
“Legislators should not be choosing the judges who interpret the laws they pass. It flies in the face of the separation of powers,” said Ashley Landess, executive director of the libertarian S.C. Policy Council. “I’m not saying the bench is corrupt. I’m saying the system itself is absolutely corruptible.”
Landess particularly dislikes the Judicial Merit Selection Commission, a 10-member commission whose members are appointed by the speaker of the House, the chairman of the Senate Judiciary Committee and the president pro tempore of the Senate. The commission members include John Davis Harrell, brother of House Speaker Bobby Harrell, R-Charleston.
“The accountability is so diffused that the public has really almost zero input,” Landess said. “If you have concerns about a judicial nominee, how are you really going to influence Bobby Harrell’s brother?”
Instead, Landess wants the governor to nominate judges who then would be confirmed by the state Senate.
Landess isn’t alone in her concerns. Over the years, other critics have said forcing judges to rely on legislators for their election — and subsequent re-election, when their terms expire — limits judges’ ability to critically review legislative actions.
But Rep. Greg Delleney, R-Chester, chairman of the Judicial Merit Selection Commission, said it is impossible to remove politics from government and the judiciary is a branch of government.
“It’s always going to be a political process whether it is the governor’s political process, whether it is a popular election or whether it is a legislative political process,” Delleney said. “When all these people talk about taking politics out of government ... (really) they want to change it to their brand of politics, whatever their brand might be.”
The S.C. Bar supports the legislative election of judges. In an email to The State, Angus Macaulay, president of the S.C. Bar, said the state’s current process “avoids the harsh partisan politics found in other states.”
State Sen. John Courson, R-Richland, president pro tempore of the Senate and one of the senators calling for ethics reform, also defends the state’s current method of picking judges. “Our structure probably is as good a way to do it as one could possibly devise.”
‘Know the right people’
The Judicial Merit Selection Commission vets the candidates for each seat. The commission only can nominate a maximum of three candidates for each seat, a process that shuts out many qualified candidates.
For example, 14 people applied for the at-large Circuit Court Seat 16. One withdrew. The other 13 were found qualified, but only three were nominated.
Delleney said the House unsuccessfully has tried to change the law so more than three candidates can be nominated for an opening.
“It’s a terrible thing to go and tell people that they are qualified but not nominated and you can’t really explain to them why they weren’t nominated,” Delleney said. “We had to pick three and you just have to use some way of picking three.”
Those “ways” include efforts to diversify the judiciary, Delleney added. “Sometimes, it is the person’s gender that gets them in. Sometimes, it is the person’s race that gets them in.”
Once nominated, the judges have to win an election where only 170 people can vote, the members of the House and Senate.
“You have to ... know the right people in the right places,” said Rene Josey, a former U.S. attorney who is running for an at-large Circuit Court seat — the fifth time he has sought a judgeship. “It’s a somewhat unpredictable process. There are a lot of factors beyond any candidate’s control.”
Reach Beam at (803) 386-7038.