By Nancy Williams, LWVSC President, and Lynn S. Teague, LWVSC Vice President, Issues & Action
The S.C. Supreme Court’s decision overturning the state’s six-week abortion ban has led to comments from public officials that point toward impacts on both the current judicial selection process and on the laws determining the process through which our judges are selected. Threats to increase legislative control of the judiciary are very disturbing.
The League of Women Voters believes that it is time to step back from the emotional heat of that issue and ensure that important decisions about fundamental aspects of our state government are made carefully and judiciously.
Under our federal and state constitutions, the judiciary is intended to be a branch of government that interprets and applies the law, adjudicates legal disputes and has the authority to enforce, or void, statutes when disputes arise over their scope or constitutionality. Judges are expected to rule without reference to either personal policy preferences or the shifting winds of politics and public opinion, relying instead on the constitution, established principles of jurisprudence and the official record presented by the parties in each case.
In South Carolina, legislative intent matters only to the extent that it is documented in the official record associated with passage of a law. Speculation about undocumented legislative or public thinking and intentions at the time of passage is as irrelevant as the most recent public opinion poll or election outcome. Legislators and the public may be frustrated when adhering to these principles leads courts to reject laws that these legislators worked for and believe are important, but they should respect the independent role of the judiciary.
What about potential changes in South Carolina’s system for choosing judges? The General Assembly already has great authority over our judiciary, through both the process for selecting judges and control of the judicial budget. There is an inevitable temptation to use these powers in ways that compromise the judiciary’s independence. We do not believe that legislative influence over the judiciary should increase.
However, we do not recommend abandoning a legislative role in electing our judges. We believe that the involvement of the diverse membership of our General Assembly in selecting judges is a good thing and one that usually serves us well. Nevertheless, the role of the Legislature in the multiple stages of selecting judges raises serious separation of powers issues
For several years we have recommended an important change.
South Carolina established a Judicial Merit Selection Commission in 1996. This commission is responsible for pre-screening candidates for judicial seats, establishing a list of qualified individuals and nominating three candidates for selection. However, the commission is not independent of the Legislature that ultimately votes on the candidates; currently, six of its 10 members are legislators, dominating this crucial gatekeeping body.
The League of Women Voters has studied this issue at length and believes that the best way to introduce greater integrity and respect for separation of powers into our judicial selection process would be to make the commission a body of well-informed legal experts that is not dominated by members of the General Assembly or other currently serving public officials. This also would have the effect of engaging a wider public voice in these important decisions.
Bills have already been introduced for the 2023 legislative session that would alter the commission’s composition and processes, and we expect that more will be filed as the session continues.
We hope that legislators and the public will keep the essential principles of separation of powers in mind as these are debated, and resolve to ensure that our system of government has the integrity possible only through preserving our tried and tested system of checks and balances.
Nancy Williams is president and Lynn S. Teague is vice president for issues and action of the League of Women Voters of South Carolina.
