ANOTHER EXAMPLE OF SOUTH CAROLINA’S LEGISLATIVE HEGEMONY
South Carolina’s governmental structure is unusual in many, many ways – and not “unusual” in the good sense. Nowhere is this clearer than in the matter of nominating and choosing judges. In South Carolina, judges are unilaterally chosen by the legislature. The governor has nothing to do with it, with the result that the legislative branch has no check on its power over the judicial branch.
And it’s not just the legislative branch that has the control. More particularly, it’s three lawmakers: the Speaker of the House, the chairman of the Senate Judiciary Committee, and the President Pro Tempore of the Senate. These three appoint all ten members of the Judicial Merit Selection Commission, the body that nominates judges for ultimate legislative approval. By law, six of the 10 must be lawmakers: the House Speaker appoints five, the President Pro Tempore appoints two, and the Senate Judiciary chairman appoints three.
So – to be clear: Three lawmakers appoint the 10-member Judicial Merit Selection Commission that nominates judges, and six of those 10 have to be lawmakers.
The system is riddled by improprieties. The current chairman of Senate Judiciary, for example, appointed himself to the Commission. The Speaker of the House appointed his brother to the Commission. And for years, when the Senate Judiciary chairman and the Senate President Pro Tempore were the same person – viz. Glenn McConnell – the Commission was appointed by two people, not three.
Apart from the improprieties, just how unusual is South Carolina’s judicial appointment system?
South Carolina is the only state in the nation in which the legislature is involved in both the nominating and appointment process of state judges.
South Carolina is only one of 13 states in the U.S. without the American Bar Association-supported “merit selection” process for electing state judges.
We are one of two states (the other is Tennessee) in which the Judicial nominating committee is appointed by the legislature.
Only one other state (Virginia) appoints judges to both the Supreme Court and Court of Appeals by legislative appointment.
South Carolina is the only state in which the legislature has appointment powers for an unexpired judicial term.
To illustrate the unique dominance South Carolina’s General Assembly holds over the judicial appointment process, consider:
Forty-five states allow the governor to participate in some fashion in filling unexpired terms.
Twenty-six states allow the governor to participate in full term appointments.
Five states allow their governor to participate in methods of retention of judges.
But there is another oddity about South Carolina’s judicial selection system that deserves attention.
Once a judicial candidate has been approved by the 10-member, legislatively dominated Commission, he or she goes on to a joint session of House and Senate for a majority vote. The vote, however, isn’t simply for or against the one candidate; it’s for one candidate over against others. That’s because the Judicial Merit Selection Commission is required to nominate up to three qualified candidates for each position (assuming there are three qualified applicants). If they want the job, therefore, judicial nominees must curry favor with legislators – “curry favor” meaning schmooze, glad hand – in order to secure the requisite number of votes. Lawmakers, for their part, have in the past been quite open about the fact that they’ve got to “get to know” candidates before they’ll support their candidacies.
What this means, in effect, is that by the time a judicial nominee becomes a judge in South Carolina, he or she is personally and professionally beholden to state lawmakers in unhealthy ways. Can judicial independence really exist in such a system? The fact that the question can be seriously asked is a problem.
It’s hard to imagine anyone seriously arguing that this is a fair and ideal system. Yet it’s just as hard to imagine the General Assembly reforming the system of its own free will. Reform, in this case, would involve the General Assembly giving up power – specifically, giving the governor power to nominate judges, with advice and consent of the Senate. And lawmakers typically don’t give up power unless they’re energetically encouraged to do so by engaged citizens.
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