EVERY TIME I hear a presidential candidate attack the Supreme Court for its decision on some culture-war issue, I think about how lucky we’ve been in south Carolina.
Oh, there’s plenty wrong with the way we pick our judges. There’s the fact that the governor is shut out of the process, which should offend anyone who believes in checks and balances. There’s the problem we saw during the Bobby Harrell saga of how judges who have to be elected — and re-elected — by legislators can skew their decisions toward powerful legislators. There’s the outsized role that personal and political relationships and even geography play in the selection process. There’s the illegal but widely practiced practice of legislators trading votes for judges the same way they trade votes on legislation.
But what we don’t have in South Carolina is judges who are forced to pass a political litmus test. What we don’t have is judges who come to the bench pre-committed to playing on a certain team, which has nothing to do with the constitution or the law or even the facts, and everything to do with political allegiances.
This could be about to change.
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A quirk of timing gives the Legislature the opportunity to remake the S.C. Supreme Court in a way that would relieve it of one of the most difficult and politically controversial obligations it has ever faced: the mandate from a 3-2 Supreme Court to provide a decent education to all children in our state, regardless of where they live.
That threat to the court is not new; it has been at least at the back of all of our legislators’ minds since the court issued its Abbeville v. South Carolina school adequacy ruling a year ago — just 13 months before state law requires Chief Justice Jean Toal to retire, at the end of this year.
But an enforcement order signed this fall by Justice Toal and the two justices who joined her majority opinion in Abbeville re-ignited passions that some legislative leaders had been trying to tamp down. I hope the court’s extreme modification of that order will calm things over — and certainly it’s better that the Toal court and the Legislature are not in a live shooting war — but I fear the damage has been done.
Anyone who cares about having a Supreme Court with a shred of credibility ought to share that fear.
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More than any other branch of government, our judiciary derives its legitimacy from the public’s confidence. Specifically from the public’s confidence in its integrity and impartiality — the ability of judges to judge every case on the law and the constitution and the facts. That’s why it’s so dangerous for would-be judges to be subject to a political vetting.
It seems almost quaint to say, after what we’ve seen in Washington for decades now, but justices should be appointed based on their intellect and ability and integrity and not on any expectations of how they might rule in a given case. Certainly not on any assurances of how they might rule.
Of course, most legislators have more sense than to openly demand that Supreme Court candidates critique the Abbeville decision or signal how they intend to handle subsequent orders related to that decision. And we didn’t see such lines of questioning when the Judicial Merit Selection Commission held its screening hearings on the candidates last month. At least not directly.
One year after Abbeville school ruling, some progress, and some clarification
But the fact is that legislators will be less influenced by the screening committee’s report than by the conversations they have with the would-be justices in the privacy of their offices. The fact is that we have fewer legislators now than ever who respect the court’s role in our government, or the need to preserve judicial integrity; that’s one of the downsides of having so few lawyers in the Legislature. And ethical rules that prohibit the candidates from discussing how they would vote on a case won’t stop legislators from asking.
And they might not stop candidates from trying to wink and nod the expected answer — fearing that to do otherwise could doom their candidacy.
That’s bad enough, but the potential is for far worse: It’s easy enough to imagine a legislator crowing about having elected a justice who pledged not to enforce the Abbeville decision — whether the new justice actually made such a pledge or the legislator simply read a pledge into an innocent remark. If the former, well, I suppose it’s best that we know it from the start, so we can figure out what to do about it. If the latter, then that new justice’s integrity will be impugned even before the swearing-in ceremony.
An argument can be made that the Supreme Court invited this assault on the integrity of the next justice by issuing such a provocative enforcement order in the Abbeville case.
But that argument overlooks the truth in the cliche about two wrongs not making a right. And it overlooks the fact that in a state that is so inordinately controlled by the Legislature, our legislators have an obligation to not do things that do lasting damage to the branch of government that dispenses justice and protects us from tyranny.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or follow her on Twitter @CindiScoppe.