Editorials

Rejection of judge highlights flaws in selection system

JUDGES HAVE AN astounding degree of power over the lives of people who come before them, so we expect them to demonstrate excellent judgment.

The Legislature's Judicial Merit Selection Commission has an astounding degree of control over the careers of those judges, and so we expect the commissioners to demonstrate excellent judgment.

Unfortunately, in voting to end the career of a well-respected judge for what it considered a terrible error in judgment on a single occasion, the screening commission committed a terrible error in judgment.

Family Court Judge Charlie Segars-Andrews should apply again for her job, the rest of the Legislature should let commission members know how wrong this decision was, and the panel should reverse itself. Meantime, the Legislature should get to work on a better system of electing judges.

Unlike the commission, we don't make this recommendation based on a single case, but rather on a growing list of concerns over its nominations and rejections and on systemic flaws in the way the process works. And unlike the panel's most vocal critics, we're not advocating a return to the no-holds-barred system of selecting judges, which saw rampant vote-trading that too often resulted in the best candidates refusing even to run and the least-qualified candidates winning.

Our system of justice, and by extension our entire government, depends on the ability of judges to make decisions based on the facts and the law and not on what's popular with the public or on what powerful politicians or special interests want; that means they need to be apolitical and independent. But too much independence can breed arrogance, corruption and tyranny; that means there needs to be some serious vetting of would-be judges, and it can be argued that there needs to be some sort of oversight - which of course can impinge on the necessary independence.

South Carolina's judicial selection system has always provided oversight, by requiring judges to seek re-election every six to 10 years. But independence has never been its hallmark, and in fact the courts have, through most of our history, acted as a handmaiden to the Legislature whose members appoint and either reappoint or reject judges, who traditionally came from among its own ranks. That system was reformed in 1997 when the Legislature barred itself from electing candidates not nominated by the new selection commission or reelecting judges not found qualified by the panel. But while that was an improvement, it contained a fundamental flaw: It continued to make a joke of the idea of checks and balances, by giving the Legislature absolute control - and the executive no control - over the third "co-equal" branch of government. That not only undermines checks and balances but also invites raw political calculation in a way that gubernatorial involvement would not.

The least bad system of judicial selection allows the governor to appoint or re-appoint judges, subject to legislative confirmation, from a list of candidates nominated by a truly independent selection commission, perhaps appointed by (but not including members of) the Legislature. This would give both of the political branches of government roughly equal say over the judiciary while giving the public a chance to hold someone (the governor) accountable if clearly unqualified judges are appointed or reappointed.

But if that's too close to actual checking and balancing for our Legislature to stomach, and if lawmakers are determined that they must select judges, then they at least need to let the governor select the nominating commission. In addition to the theoretical superiority of a balanced system, this has the practical advantage of giving voters someone to blame when a talented, respected judge is kicked off the bench because she made one call that the commission didn't agree with.

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