BRACK: Reform the way S.C. picks judges

By Andy Brack  |  Judges in South Carolina are, by their very nature, political creatures.  While they’re supposed to be fair, impartial and non-political on the bench, it’s always in the backs of their minds that they got their jobs through a political process.

“They are aware of the outcome of the last election,” one former senior judge told me this week.  Another remarked, “A judge would be foolish not to have his finger in the air and be a judge of the political winds.”

In some states, judges are elected by voters.  Bad idea.  Forcing judges to become politicians and to raise money, buy campaign ads, offer political messaging and face voters is a bad idea.  It essentially would open them up to all sorts of conflict. Imagine some rich guy or business who gave a $2,000 donation to every judicial candidate.  That would be a pretty easy way of creating havoc within the system.

In the federal system, judges are recommended by a senator, nominated by the president and confirmed by the Senate.  That’s less political than running for office, but it’s still political because judges nominated by a Democratic president often are pegged as more liberal than those nominated by a GOP president.  Would anybody ever accuse three justices nominated by former President Donald Trump – Amy Coney Barrett, Neal Gorsuch or Brett Kavanaugh – of being a closet Democrat?

South Carolina has a hybrid system because it avoids direct popular elections and appointments.  Instead, it relies on the principles of representative democracy that allows state lawmakers to pick judges after candidates have been screened and qualified by a panel of lawyers.

The process avoids the politics of statewide or regional campaigning and pitfalls of appointments involving a governor.  But on the negative side, there’s still an election – just with a smaller group of people, senators and state representatives.

In South Carolina, the hybrid involves the Judicial Merit Selection Commission, a group of 10 lawyers who screen and qualify lawyers who want to be judges.  The Senate and House appoint five members each, including three lawyer-legislators each.  

Before 1996, anyone who met constitutional age and residency requirements could be considered by the General Assembly for a judgeship, according to the SC Bar.  But that changed with reform that updated the process and gave the responsibility to the JMSC as the body to nominate up to three qualified candidates.  According to the SC Bar, “Previously, the review panel did not have authority to remove names from consideration and sent all candidates — qualified or not — to the General Assembly for consideration.”  

Some past judges said the limit of three qualified candidates was when more politics got injected into the system by creating legislative pressure on the JMSC to give the nod to some candidates over others.  

Now is the time for more judicial reform tweaks to take even more politics out of how lawyers get to the bench.  Legislators should update the selection rules to make at least two changes in the coming session.

First, they should get rid of the rule that only three candidates can be qualified and nominated.  Let the JMSC do its job and release names of all qualified candidates.  Members don’t need to nominate candidates – a political process if there ever were one.  Instead, they should give a thumbs up or thumbs down on whether a candidate is qualified to be fair and impartial, politics aside.

Second, the make-up of the commission needs to change.  The legislature already has a part in the process – electing judges from a series of qualified candidates.  Legislators don’t also need another bite at the apple by being on the screening panel to determine who is qualified.  That needs to be left to outside lawyers, who can be recommended by professional legal organizations and appointed by the House and Senate.  

Keeping the judiciary as impartial as possible should be number one on the General Assembly’s coming reforms.

Andy Brack is editor and publisher of Statehouse Report and the Charleston City Paper.  Have a comment? Send to: feedback@statehousereport.com.