Now that we’ve finished the latest round of weary judicial candidates filling the State House lobby for several weeks in an attempt to get enough legislative votes to win election to the bench, it’s a good time to examine what we get right in selecting our judges, what we get wrong and what we can do to improve the system.
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First, something that South Carolina gets absolutely right is not having public election of judges. Some see public election as a way to maintain the independence of the judiciary and the separation of powers between branches of government. Unfortunately, when judges wage public campaigns for their seats, they must raise campaign funds. The results are the same as when candidates run for legislative or executive offices: We see real and apparent conflicts of interest, with a corrosive effect on public confidence in the courts. The Pew Charitable Trusts and the Brennan Center for Justice at New York University have documented very real problems associated with public campaigns for the judiciary, including interventions by dark-money groups with a vested interest in electing judges who are sympathetic to their causes.
The problem is that when you don’t have public elections of judges, one or both of the other branches of government must select them, and maintaining separation of powers becomes more difficult. In South Carolina, the General Assembly alone both reviews the qualifications of candidates and then elects judges.
Some argue for making our system like the federal system, where the governor would appoint judges and the Senate would advise and consent to those appointments. This approach is vulnerable to partisan games, but it is not a bad system; it has the virtue of centralizing accountability in the executive branch.
But the league believes the involvement of the diverse members of our General Assembly in selecting judges is a good thing that usually serves us well. Nevertheless, the role of the Legislature in every stage of selecting judges does raise serious separation of powers issues and makes the process less credible than it should be.
In 1996, South Carolina established a Judicial Merit Selection Commission, which is responsible for screening candidates for judicial seats and nominating qualified candidates. However, the commission is not independent of the General Assembly that ultimately votes on the candidates. Six of the 10 members are legislators, dominating this crucial gatekeeping body.
The League of Women Voters believes the best way to introduce integrity and separation of powers into our judicial selection process is to remove legislators from the commission. The General Assembly could continue to nominate the members, but the commissioners themselves should be attorneys, retired judges and judicial experts who can bring an independent and well-informed perspective to the question of who is and is not qualified to serve in our judiciary. This is not a perfect solution, but it would be a major improvement.
A bill to accomplish this has been filed by House Speaker Pro Tem Tommy Pope. H.3207 also requires the commission to give the General Assembly a list of all qualified candidates, rather than the three top candidates as is now the case, offering legislators increased choices at the last stage of the process. The bill does not establish qualifications for membership on the commission, but this could be added. This bill has not yet been heard in subcommittee, but we hope it will be.
This is a change South Carolina needs in order to assure all of us that we have a judiciary that is not entirely dependent on another branch of government and that is prepared to provide the checks and balances on the executive and legislative branches that our founders hoped for and that our citizens need.
Ms. Day is co-president of the League of Women Voters of South Carolina; contact her at firstname.lastname@example.org.