Complaints about the way judges are picked in South Carolina are nothing new, but when two female appellate judges dropped out of a three-way contest with a male colleague, heads turned and tongues wagged. If the male is elected as expected, despite judicial elections being put off a week by the legislature, the five-member state Supreme Court will be all male for the first time in three decades.
Whatever method is used to pick judges is political. But some now wonder whether there are ways to limit some of the politics involved in judicial races.
Currently, judicial seats have limited terms that require incumbent judges in South Carolina and challengers to have to run every few years. Judges are picked by state legislators, but only after they are screened and qualified by a state judicial merit screening group. That group includes six legislators and four others. Of the 10, the S.C. Senate picks five; the House picks the other half.
The screening committee can qualify up to three candidates for each race. Then these candidates, who are not really allowed to “campaign” directly for a seat, do something that is worse than being told to stand in the corner by a teacher — they start the mind-numbing process of showing up in Columbia to be seen by legislators and shake hands — without campaigning, even though it’s obvious that’s what they’re doing. It’s kind of embarrassing and a huge waste of time simply to build awareness and massage legislative egos.
At some point in the process, judicial candidates are able to seek commitments from lawmakers, but usually by the time this is done, it’s pretty clear who is in the lead for a particular seat. And that’s when other candidates drop out to save face.
In the current process, legislators — our elected representatives in our democracy — hold tight control of who becomes judges. In fact it’s not unexpected, wait for it, for former legislators to get elected as judges.
Some say this whole process is too political because the legislature is too cozy with candidates — that it’s an insider’s game of judge-ball. They say what really needs to happen is that the people — voters — need to elect judges.
Bad idea. Do you really want judicial candidates taking money from voters and big corporations so they can win a popular election? Shouldn’t they be concentrating on the law, not checking off boxes of how to get elected from books like Politics for Dummies?
We say judicial candidates should be kept away from money and politics. But what other alternative is there? How about having South Carolina follow the federal way of judicial selection by having the governor nominate from those deemed qualified by the screening committee and then have the Senate confirm? That way, the executive branch could participate in the process as a part of checks and balances. And it could curb the overriding influence of the legislature in the process.
We like this idea better, but add a couple of tweaks:
The judicial screening committee should qualify or not qualify all candidates for each judicial seat, not make secret value judgments about the candidates and then qualify only three. Then the governor could pick the best of all those qualified.
To balance legislative influence further, the legislature should pass a new law that makes it illegal for any sitting state lawmaker to appear in court before a judge elected while he or she is a member of the General Assembly. After a lawmaker was out of the General Assembly, it wouldn’t matter so much, but if a legislator shows up in court for a judge who knows he or she might need that lawmaker’s vote soon, that’s a conflict. And it needs to be wiped out. This kind of rule would curb the potential for inappropriate conflicts.
Regardless of what strategy you find is better for electing judges, doing things the way we’ve always done them might not be the best — or fairest — way. Do something better.
Andy Brack is editor and publisher of the Charleston City Paper and Statehouse Report. Have a comment? Send to: email@example.com.
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