SC needs to reform, not replace, its process for selecting judges | Opinion

As a freshman lawmaker, no aspect of my service has proven more opaque and less satisfying than South Carolina’s process for selecting judges. It gives too much power to insiders, limits who can run, and lacks transparency when candidates are disqualified. I’m co-sponsoring bi-partisan legislation (H.4179) that will fix these problems. Here’s why.

In South Carolina, the legislature picks judges during a joint session of the House and Senate. Before lawmakers vote to pick who will serve on our trial and appellate courts, candidates are screened by the Judicial Merit Selection Commission to determine whether they have sufficient qualifications. Commission screening is required by the state Constitution, and it performs an important function. However, because of a law passed by the legislature, the commission exerts extraordinary, sometimes outcome-determinative, influence over the process. It’s time to change that.

First, under current law, the commission limits the number of candidates who can run to no more than three. It is not uncommon for five, six, or seven candidates to run for an open judgeship; often, more than three are qualified. But state law requires the commission to pick no more than three for the legislature to choose from. That needs to change. If you’re a qualified candidate, you should be able to run, period. Making this change eliminates the commission’s ability to influence the outcome by pairing a preferred candidate with two weaker ones.

Second, if the commission deems a candidate unqualified (i.e., barred from running), that candidate deserves an explanation in writing. This is only fair.

Third, lawmakers should no longer serve on the commission. Legislators already have a role in the process: we vote to pick the judge. Currently, six of 10 commission members are lawmakers. That gives a handful of powerful insiders two opportunities to decide who serves.

This weekend the Post & Courier urged a ban on lawyer-legislators from serving on the commission. I don’t agree. We shouldn’t treat some lawmakers differently because they practice law — all lawmakers would be barred by my bill. My bill addresses the P&C’s concern that judges might be swayed by fear of lawyer-legislator retaliation by requiring commission members who review qualifications to be separate from lawmakers who vote for the judge.

H.4179 strikes the correct balance between reform and preserving what works well in our system.

For those who prefer more radical change, I believe we should attempt to fix a system that has served this state well for decades before we scrap it in favor of something new and untested. The current system insulates the judiciary from electoral politics by spreading the power to choose judges among the legislatures’ 170 members. That produces a better result than alternatives like public elections. Those that favor public elections should look to Wisconsin, which just held a highly polarized, divisive $40-million race to fill just one state Supreme Court seat. Executive appointment is also flawed, as we need only look to Washington, D.C., for examples of dysfunction.

Conversely, I hope those who prefer the status quo recognize legitimate questions over whether the current system is working and who it’s working for. Judgeship races rarely end with a public vote by the legislature as the Constitution intends. ProPublica reported in an article titled, “How South Carolina Ended Up With an All-Male Supreme Court,” that before lawmakers could vote for two female and one male judge seeking to replace retiring Justice Kaye Hearn, both women faced “intense pressure to withdraw quickly.” Which they did, meaning we never had a vote — we had a coronation of the remaining male candidate. The optics are not good. And female representation is not the only concern. Our state’s minority community is also underrepresented on the bench: 13% of judges are Black in a state with a 26% Black population.

This is not an issue I ran on. But I won’t ignore calls from law enforcement, prosecutors, the press, and the public demanding greater transparency. A simple legislative fix can dramatically improve the process and public confidence.

Heather Bauer, a Richland County Democrat, represents District 75 in the state House of Representatives.

This story was originally published May 2, 2023 at 3:27 PM.