By Cecilia Brown | If South Carolina does it one way, and most other states along with the federal government do it another way, we might wonder how likely it is that South Carolina is right and everybody else is wrong.
Consider the way we install judges. In effect, the legislature unilaterally elects them.
The South Carolina Judicial Merit Selection Commission is made up of 10 individuals. All ten are lawmakers or people appointed by lawmakers. The Commission uses its own criteria to screen candidates and narrow down to a maximum of three applicants per judicial position. The whole legislature then votes on these candidates. Throughout this process, the governor has no say on how or who these candidates for the judiciary are.
Imagine if this were the case at the federal level. Imagine if Congress unilaterally elected judges, and the president had nothing at all to do with the process. Nobody would trust the court to challenge the constitutionality of laws passed by Congress.
Yet that’s exactly what happens in South Carolina. What we have, in essence, is one branch’s domination of another – a blatant violation of the principle of the separation of powers.
It’s hardly surprising, therefore, that South Carolina judges seem frequently to rule in the legislature’s favor. State laws are rarely struck down as unconstitutional. State lawmakers might think that’s because they only pass constitutional bills. Others – I think more logically – might think it has something to do with the fact that judges owe their careers to the lawmakers responsible for the laws whose constitutionality they’ve been asked to judge.
How should we install our judges, then? Some states use popular elections to choose judges – a system widely and correctly criticized for politicizing the judiciary. Most others – together with the federal system – empower the executive to nominate judges and the legislature to confirm them. That is the only way to avoid the legislature’s domination, on one hand, and politicization of the judiciary, on the other.
In recent years, the South Carolina judiciary system has drawn the legitimate criticism that it promotes “inbreeding.” At one point in the mid-1990s, for instance, more than half of circuit court judges and all five Supreme Court justices had served in the General Assembly prior to being elected to the bench. The case isn’t so different now.
Five judges have filed to fill the seat on the South Carolina Supreme Court that Justice Costa Pleicones is vacating in January when he becomes chief justice. At the same time, nearly 50 will be reviewed for an at-large Circuit Court seat. All the decisions on these judicial seats will be made by people you’ve likely never heard of and can’t vote for – legislative leaders and their appointees. The governor, whom you can vote for, should play an equal role in these decisions. But she will play virtually no role at all.
Is reforming South Carolina’s system just a dream? Not really. There are two bills now in General Assembly that would take significant steps toward creating an independent judiciary. Either of these bills would eliminate the unilateral power of the General Assembly to control the judicial branch by requiring the governor to nominate judges with advice and consent from the Senate.
A few lawmakers – especially the sponsors of these and similar bills – see the gravity of the problem. Let’s hope that number grows.
Cecilia Brown is an intern and investigative researcher at the S.C. Policy Council. She attends the University of South Carolina.
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