OCT. 12, 2012 – Several Statehouse candidates are pushing an issue that could become a flash point to ignite change of one of the most important process of state government: how South Carolina selects its judges.
Critics, like state Sen. Tom Davis (R-Beaufort), want to give the power to nominate judicial candidates to the governor. But State Sen. Larry Martin (R-Pickens), chair of Senate Judiciary, said that to change the judge selection process would take an amendment to the state constitution.
How the process now works
Currently, lawyers who want to be on a state bench or sitting judges who want to stay on the bench must first submit an application to the state’s joint Judicial Merit Selection Commission, which includes members of the House and Senate, as well as lawyers and other laymen appointed by the General Assembly.
Once a candidate pool is created, their names are turned over to five citizen committees representing different geographical areas of the state. The committees report back to the joint commission.
Then the candidates, if they want to forge ahead, are further vetted by the commission, which then issues a report to the General Assembly as to whether they are qualified. The commission next whittles the field and approves three candidates for legislative consideration.
Finally, the legislature votes to see which of the three candidates will be given a spot on or return to a state bench.
South Carolina is one of two states, including Virginia, which uses this process. State Sen. Gerald Malloy (D-Hartsville), the former head of a statewide trial lawyers association and a member of the Senate Judiciary Committee, said the current process is the “envy of all the other states” for its non-partisanship and stability.
But critics say it’s legislatively-dominated
The problem, according to candidates like Davis, is the process is almost completely dominated by the legislature. He points out how members of the legislature, many of whom are lawyers who may appear before that judge in the future, select and then fund the judiciary.
Davis said he saw this as a clear violation of “the three independent branches of government we all learned about in third grade.” Therefore, he favors a process whereas the governor lays out three candidates, and then only the Senate votes on them.
Lt. Gov. Glenn McConnell, however, said that a gubernatorial appointee system would be wrong for the state on four different issues. One, it could pave the way for further politicization of the process, as a governor could use donor lists as the de facto candidate list, hidden away from public scrutiny in back rooms.
Two, he said, powerful and rich law firms could skew judicial appointments with donations to governors’ campaigns. Three, it limits public input and scrutiny. And four, it limits the number of eyes looking over the candidates.
“Our predecessors in South Carolina were not so much as witnesses to history, as they were victims of history,” said McConnell, who led the charge for most of the past reforms that have resulted in the current process when he was the commission’s chair and the chair of the Senate Judiciary Committee.
“As a result, South Carolina never liked consolidation of power in one person,” said McConnell.
The current commission chairman, state Rep. Greg Delleney (R-Chester), agreed, saying that the state, because of its history as one of the original 13 colonies, “has never had use for a king.”
McConnell said that if the current process were in need of any sort of reform, it would be increase public participation.
So what? Both methods are political
Both sides of the argument make the case that their path would lead to removing politics from the process – a moot argument, according to some leading academics.
Scott Huffmon, one of the state’s leading political scientist and the head of the state’s most influential polling center at Winthrop University, said that “straight gubernatorial appointment is no less political a method of judicial appointment than legislative appointment-election.”
He continued: “The only thing worse than either of the two is direct election of judges because of the inherent conflict of interest engendered in the need to raise money and the lack of information available to the public and their lack of knowledge of the inner working of the judicial system.”
Delleney said the argument for changing the current system is an imported one by “Northerners” who want a system that mirrors the federal model and the one they were used to before relocating to the Palmetto State.
Martin, the Pickens Republican who chairs the Senate Judiciary Committee, said that to change the judicial selection process would likely take an amendment to the state constitution.
Davis, a New Jersey native and Furman graduate, argued the state’s reverence for the U.S. Constitution need not extend to South Carolina’s version, which he said was flawed since it was constructed by Ben Tillman in 1895 to limit gubernatorial power if a black person were elected to that office.
Crystal ball: While Gov. Nikki Haley’s office has not made an official call or push for gubernatorial judicial appointees, it would fit in nicely with her calls for accountability and streamlining state government through restructuring. That being said, there is substantial opposition to changing the current process due to stated reasons and the unspoken 400-pound gorilla in the room – the legislature never wants to cede any power to the executive branch. But if Davis is right, the legislative dominance of state government has helped retard the state’s progress, then calls for change in the balance will have to come from outside – the people.
Bill Davis is editor of Statehouse Report. He can be reached at: firstname.lastname@example.org.