Monday, Jun. 15, 2009

Scoppe: Sanford wrong about court, right about selection system

GOV. MARK Sanford didn’t lose his fight to keep federal stimulus funds out of South Carolina because the state Supreme Court is afraid to rule against the Legislature, as he has been implying since even before he lost; the court has made it clear that it is not afraid to rule against the Legislature, as it did rather dramatically earlier this spring in the latest of a string of increasingly strong rulings reining in the Legislature’s use of an extremely important — but unconstitutional — tool to pass controversial and unvetted laws.

Nor, by the way, did he lose because of the jaw-dropping degree of contempt he has shown toward the court, in his comments to reporters before the ruling questioning the justices’ ability to be impartial and, more significantly, in his double-cross/defiance — attempting to remove a case to federal court after the justices allowed him to intervene on the condition that he not do that. (I can, however, see how this might have played into the court’s decision to take the extraordinary step of issuing a writ of mandamus directly ordering the governor to act, by giving the justices serious concerns about whether he would abide by a simple declaratory ruling upholding the constitutionality and applicability of the law.)

Very simply, Mr. Sanford lost because he was on the wrong side of the state constitution.

But the fact is that our state constitution leaves much to be desired, as do many of our laws. And while Mr. Sanford’s thinly veiled attacks on the court’s integrity are inappropriate in this setting and his attempt to yet again create a scapegoat and make of himself a martyr is tiresome, he is absolutely correct when he criticizes our judicial selection process.

The court’s growing independence from its legislative patrons — which it has most notably demonstrated in upholding challenges by the governor’s own allies — is in spite of, not because of, the way our system of government is set up.

Like most of South Carolina’s government, the judicial selection process revolves around the Legislature. The Legislature elects judges for fixed terms. Every few years — 10 in the case of the Supreme Court justices — judges must return to the Legislature to face re-election. (Mr. Sanford also has attacked the fact that the court’s budget is written by the Legislature, but there’s nothing unusual or, frankly, avoidable about that.)

Critics have long contended that it’s inappropriate for the Legislature to select the judges. And although I used to defend the idea, if not always the implementation, of that system, I have come to believe that it would make more sense for the governor to appoint them — for the same reason governors, who can be held accountable by voters in a way the Legislature cannot, should appoint most agency directors.

But the primary flaw with our system isn’t the Legislature’s selection of judges per se. It is the Legislature’s exclusive control of the selection process, without any input whatsoever from the third supposedly co-equal branch of government. The whole reason we have three branches of government is so that any two of them can act as a check on the third. Giving one of them the sole authority to pick all the members of one of the others has the potential to weaken that protection. It’s just as unbalanced and inappropriate as a system in which a governor has carte blanche to select the judges, and the legislature has no input.

Lawmakers improved the system dramatically a decade ago when they created a merit selection commission to disqualify all but the strongest candidates. That made the road to the bench more difficult for people whose primary qualification was their political connections, although that commission is itself growing increasingly political. But it did nothing to address the legislative dominance of the process. Indeed, legislators themselves hold a majority of seats on the allegedly “independent” commission.

Ideally, the governor should be able to select judges nominated by a merit commission, subject to Senate confirmation. But even just making the merit commission truly independent would strengthen our system of checks and balances, by reducing the Legislature’s ability to play politics with judicial appointments.

There is absolutely no truth to Mr. Sanford’s suggestion that his loss on the stimulus cases was pre-ordained by the fact that our system of government puts the court in “a very, very tough spot in which to operate.” But even he wouldn’t be able to make such a claim if the Legislature did not so completely control the fate of the court and its members.

Ms. Scoppe can be reached at cscoppe@thestate.com.

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