A Republican S.C. House member wants to know about the “personal relationship” that would-be state judges have with the “Supreme Being,” whether they would perform a gay marriage and how they would rule if a woman sued for equal pay.
“Those things … would give an indication of how ... they see the world, and how you see the world is going to have everything to do with how you see law, and how a judge should treat law,” said state Rep. Jonathon Hill, who issued the 30-question survey.
State staffers quickly squelched the survey as improper.
Candidates for judgeships are barred ethically from responding to some of the questions, said University of South Carolina law school ethics expert Greg Adams, referencing the state’s Code of Judicial Conduct.
“Answering these questions amounts to a promise to decide future cases in accordance with this political pledge,” Adams said.
Adams also said some of the questions amount to a religious test to hold public office, barred by the U.S. Constitution.
Judicial elections are controversial in South Carolina, where legislators elect judges. Some criticize the process for giving the Legislature too much control over the judicial branch of government, threatening its independence and injecting too much politics into the process.
Hill said he tried not to ask leading questions because he wanted honest answers. “If you’re a candidate and you tell me ... what you think I want to hear … that doesn’t help me at all.”
None of the candidates had responded to the questionnaire as of Tuesday afternoon, Hill said.
Hill said staffers of the state Judicial Merit Selection Commission called him and told him some of the questions were “problematic,” given the Code of Judicial Conduct that would-be judges have to operate under.
Staffers also sent an email to the candidates letting them know that Hill had been told they were unable to answer most of the questions.
“You live and learn,” said Hill, a 29-year-old Anderson businessman and freshman legislator. “Maybe next year I’ll be in a better position to — if I put out a questionnaire — to craft it in a way that would work a little bit better.”
The questions asked included:
• “In a case where someone was assaulted because he was gay, would you consider it a ‘hate crime’ and increase the penalty?” (South Carolina does not have a state hate-crimes law.)
• “Do you believe unborn children have rights? If so, how would those factor in to your decisions as a judge?”
• “Given a case where a local gun restriction ordinance was being challenged, would you uphold the ordinance or strike it down? What factors would play into that decision?”
• “What religious or community organizations are you actively involved in, if any?”
• “If a woman sued her employer because she was paid a lower rate than her male coworkers, would you rule in her favor or not? Please explain why.”
The religious questions run afoul of the First Amendment of the U.S. Constitution, said Adams, the USC legal expert. “That is, in essence, creating a religious test to hold a public office.”
South Carolina’s state laws and Constitution include federally unconstitutional provisions that require people to believe in God in order to hold a public office, Adams said. “Everybody has known, for forever and ever, those are unconstitutional – they violate the First Amendment.”
Judicial candidates at any level sometimes are asked about public issues, but they uniformly respectfully decline to answer those questions, Adams said.
“He can ask the questions, but not a single one of the candidates could ethically answer many of the questions,” Adams said, adding an important principal of the judicial code is that judges should rule independently of outside influence.
House Judiciary Committee chairman Greg Delleney, R-Chester, said he had not heard of a questionnaire like Hill’s being issued in his 25 years as a lawmaker.
Judicial Merit Selection Commission chairman Larry Martin said newer lawmakers are not aware of the Code of Judicial Conduct that would-be judges have to follow.
“I don’t expect a young House member that has never been exposed to that to know that right out of the gate, but he’s learning and he will learn,” said Martin, a state senator from Pickens.
House Minority Leader Todd Rutherford, D-Richland, also was critical of Hill’s survey.
“Asking advisory opinions on how someone would rule is wrong,” Rutherford said, adding different cases have nuances so a potential judge could not answer Hill’s questions.
But, Rutherford acknowledged, Hill only has been a lawmaker three weeks. “Bless his heart.”