The day before S.C. lawmakers voted to elect judges last week, some received advice on the importance of letting the public know that legislators take that exclusive power seriously.
House Majority Leader Bruce Bannister of Greenville told fellow Republicans Tuesday morning to give “serious, thoughtful answers” if asked why they support a candidate.
Don’t just respond with, “‘Well, I knew them in kindergarten,’ or something,” he said.
The next day, lawmakers elected more than 20 judges, including deciding a contentious judicial race between a lawmaker’s spouse and a 16-year incumbent.
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That race drew cries of nepotism from Gov. Nikki Haley. It also re-launched a debate among lawmakers about whether S.C. law needed to be changed to avoid conflicts of interest – whether real or perceived.
Advocates of changing that system say Wednesday’s judicial controversy is just one of several examples of why South Carolina should end lawmakers’ exclusive authority over nominating and electing judges.
• Legislators’ spouses have run before and won posts, putting everyone involved in uncomfortable situations.
• The independence of S.C. courts has been questioned, given the way the General Assembly picks judges and sets their budgets. That system has judges, elected by legislators, ruling on the laws made by those same legislators, who will decide if those judges stay in office.
But advocates of the current system say other options for electing judges could be worse, turning judicial elections into fund-raising contests or giving the governor too much power.
One branch controlling another
The way South Carolina conducts elects judges is rare.
Virginia is the only other state where legislators control the nomination and election of judges.
Lawmakers should share that power with the public or the governor to create checks and balances, some say.
“We don't need one branch of government basically controlling everything about another branch of government,” said Lynn Teague with the League of Women Voters.
But even as lawmakers debate ethics-related legislation, a 2-year-old effort to tighten the rules on legislators’ activities, only a small chorus of lawmakers is talking about changing the way judges are elected.
Their proposals lack consensus on whether lawmakers should give up nominating or electing judges – or both.
In defense of the how lawmakers now pick judges, some say South Carolina’s system could be worse.
The public could elect judges in partisan races “where judicial candidates have to raise hundreds of thousands of dollars for political campaigns and run as Republicans or Democrats,” said Tyler Jones, a House Democratic Caucus spokesman who says the state’s current process is much better.
He’s not alone in that concern about even more politicization of the judiciary.
“The politics of the next popular election and who contributed money should not come into play as a factor” in a judge’s decision, said state Sen. Chip Campsen, R-Charleston.
Politics at play
Some lawmakers were repelled by the negative politics that they said were at play in Wednesday’s judicial election between Bill Funderburk of Camden and 16-year-incumbent Carolyn Matthews of Columbia.
The revulsion was so extreme that about two dozen lawmakers, who had voted in another competitive race just minutes before, either did not vote for Funderburk or Matthews or voted “present” in protest.
Gov. Haley also weighed in, posting the vote on Facebook and calling out lawmakers who backed Funderburk, accusing them of supporting nepotism.
The political back-and-forth continued Friday.
House Minority Leader Todd Rutherford, D-Richland, accused Republican Haley of seeking “political payback” against Democratic Rep. Funderburk of Camden.
In 2012, Funderburk was the only member of the House Ethics Committee who did not want to dismiss a complaint that Haley had violated state ethics laws by failing to disclose her work as a consultant for a Columbia engineering firm. Funderburk also was the panel’s only Democrat.
Rutherford also noted Haley, too, cast a vote that helped the spouse of a lawmaker become a judge.
Haley press secretary Chaney Adams, in turn, accused Rutherford of mudslinging, adding Haley gladly would join both parties in an effort to ban state lawmakers “from appointing their spouses as judges.”
‘They know my Aunt May’
State Sen. Larry Martin, the Pickens Republican who is head of the Senate Judiciary Committee, already is pushing a proposal that would ban the spouses of legislators from running for judge.
Sen. Campsen says he would like to dial back the political influence on lawmakers by giving them more time to consider candidates.
Candidates must wait 48 hours after the Judicial Merit Selection Commission releases its list of nominees to ask lawmakers for their support.
Now, lawmakers seldom have time to review the nominees and the selection commission’s report on their qualifications – usually released on a Thursday at noon – before candidates start asking legislators their vote the following Tuesday, Campsen said.
Sometimes judicial races are decided that first day that legislators are back in Columbia for their three-day work week, long before election day in the General Assembly.
“You fire the gun, and the race is over,” Campsen said. “It’s supposed to be a 5-K (race), but, instead, it’s a 4-yard dash.”
Campsen also said his proposal would encourage lawmakers to put in more thought before they pledge to vote for candidates.
Sometimes lawmakers choose candidates who live near them, go to their Rotary Club or “know (their) Aunt May,” he said.
Then, Campsen added, lawmakers sometimes regret their commitments after learning more about the candidates from talking to other lawmakers, and say, “ ‘I wish you would have told me that before.’ ”
‘Almost impossible’ to avoid conflicts
At least five other bills introduced in the House and Senate this year seek to change the way lawmakers nominate and elect judges.
Two proposals would remove lawmakers from the process of nominating judges, while allowing them still to elect them.
Under one of Martin’s proposals, the governor would renominate the incumbent or nominate three candidates who would face an election in the General Assembly.
Another Senate proposal, by Tom Corbin, R-Greenville, would remove lawmakers from the screening process, replacing them with members of the public, who would be nominated by lawmakers and appointed by the governor.
The governor would pick a chairman from the public members of the judicial screening panel.
Teague said the League of Women Voters would support members of the public controlling the screening process for judges – a move that would curb suspicion that lawmakers were favoring candidates with ties to them.
“There’s nothing unethical about anybody running because they’re married to a legislator,” Teague said, referring to Wednesday’s race where Rep. Funderburk’s husband defeated incumbent Matthews, 87-50.
“The question is: How do you evaluate whether extra influence is brought to bear?”
In a small state like South Carolina, where lawmakers “wouldn’t have been elected if they didn’t have ties with others,” it is “almost impossible” to expect judicial candidates – or candidates for other legislative appointments – not to know someone in the Legislature, she added.
Politics of one or 170?
Three other bills would end altogether the process of lawmakers electing and nominating judges.
Sen. Lee Bright, R-Spartanburg, and three House Republicans have filed bills that would allow the governor to nominate judges. Lawmakers would confirm the governor’s appointees through a formal screening process and could reject nominees.
State Sen. Tom Davis, R-Beaufort, supports having the governor nominate judges – and having lawmakers confirm them. Doing so would lead to higher-quality judges who are more independent from the legislative branch, he said.
Davis said politics now drags down the process of legislators electing judges, leading, as it did in Wednesday’s race, to a limited discussion on the “pros and cons based on (the candidates’) merits.”
S.C. Attorney General Alan Wilson, R-Lexington, also strongly supports changing the way the judges are elected to include the executive and legislative branches of government, he said in an email Friday.
“The current method omits any involvement by the executive (branch, meaning the governor),” Wilson wrote. “We greatly need the participation of both the executive and legislative branches in this process. Full participation by all branches of government works best.”
Letting the governor choose judges for lawmakers to vet and approve would ensure South Carolinians know who to hold accountable for judicial conduct, said Ashley Landess, president of the S.C. Policy Council, a limited-government think tank.
The buck would stop with the governor who would be responsible for selecting qualified judges, she said. That system is similar to what happens on the federal level, where the president nominates judges and the U.S. Senate confirms them, she added.
Thus far, however, none of the judicial reform proposals has gained any traction. Combined, they have only seven sponsors out of the 170 members of the General Assembly.
Despite the slow start, support for change is building, Landess said.
“This is a very old system. It’s going to take a long time to force lawmakers to give up power.”
But Campsen sees danger in following the federal model and consolidating the power to nominate judges in the governor’s office.
Legislators should continue electing judges, he said. That diffuses power over the judiciary over the 170 members of the General Assembly, not one person, he said, adding, either way, the process will be political.
“The question is: Whose politics do you want involved?”