12 December 2023
More than a decade ago, the LWVSC conducted a two-year study of our judiciary and its selection processes. We consulted active and retired attorneys, judges, and law school faculty. My testimony today is rooted in League policy positions that are derived from that study. We concluded that in many respects South Carolina’s system is superior to many others. We do not recommend public election of judges. However, we believe that the role of the General Assembly in the merit selection process should be modified to protect both the appearance and the reality of separation of powers and an equitable judicial process for all who are involved.
Under the current system, the qualifications of all judicial candidates are screened by the Judicial Merit Selection Commission (JMSC) before going before the General Assembly as a whole. The JMSC then submits the names of up to three qualified candidates to the General Assembly for its consideration. We believe that two changes are needed to ensure public confidence in an independent judiciary that is fair to all. Title 2, Chapter 19 of the South Carolina Code1 dealing with the JMSC should be amended: (1) to preclude legislative membership and (2) to raise the cap on the number of qualified applicants’ names submitted to the General Assembly.
We believe that the most important change is elimination of legislative membership in JMSC. We understand that there is considerable resistance to this change among legislators and we acknowledge the dedicated service on JMSC that many legislators have provided over the years. However, the potential for conflicts of interest and abuse, or even the appearance of these, out-weigh any advantages in the current system. The participation of legislators in JMSC threatens the independence of our judiciary. At a very basic level, no one in a court proceeding should face an opposing counsel who has the power to fire the judge, power derived from the combined influence of having both JMSC membership and a role in the legislative election process.
This should not create difficulty in appointing an excellent JMSC. There is an abundance of expertise equal to or greater than that of legislators available from others. Appropriate professional legal or ethics expertise must be a statutory requirement for JMSC membership. Continuing the practice of consideration of SC Bar Association recommendations and citizen input will further ensure that knowledgeable individuals from all walks of life are able to contribute to the evaluation process.
It also could be argued that JMSC membership by any attorney active in litigation could present a similar opportunity for conflicts of interest. However, we see significantly greater danger in the role of legislators than in that of other attorneys. Legislators are in a position to leverage their elected role in ways that others are not, heavily influencing the appointment process from first evaluation to final vote.
The second measure that we recommend would lift the cap on the number of qualified applicants' names submitted to the General Assembly, thus allowing the General Assembly to consider an expanded list of qualified applicants, as is its prerogative. The role of the JMSC should be to assure that all candidates submitted to the General Assembly for its consideration are qualified. This also should help to correct a very great weakness in recent appointments: lack of racial and gender diversity. That diversity is essential to public confidence in our system of justice.
Are the problems real? Does the JMSC really require significant change? We note Chief Justice Beatty’s dissent in the case of Planned Parenthood South Atlantic, et al. v. State of South Carolina, et al.:
I cannot help but observe at the start that it [the majority opinion] has taken the extraordinary step of disregarding this Court's precedent as it struggles to justify its legally inconsistent result. This not only weakens the stability and reliance value of the law in this state, but ultimately undermines judicial independence and the integrity of the Court as an institution. . .
As previously noted, the fear of legislative reprisal is palpable. The lack of judicial independence renders a court powerless and places it on the edge of a slippery slope to irrelevance.
In short, the Chief Justice of our Supreme Court has added his voice to others making it clear that the independence of our judiciary is threatened. We believe that the composition of the JMSC is a significant element in that threat.
We have several additional recommendations. The qualifications to serve as magistrate should be more rigorous. Magistrates should have professional legal expertise. The role of magistrates raises another issue. There should be no extended holdovers following the end of a term of appointment for magistrates or for any other member of the judiciary. Leaving magistrates vulnerable to removal effectively at will by a legislator is an obvious invitation to abuse. While short delays in reappointment or replacement may be needed for any number of practical reasons, reasonable criteria and limitations for permissible holdovers should be clearly defined in law.
We also recommend an additional effort that may reach beyond the scope of this committee but demands attention. It is widely recognized that judicial budgets should be protected from being singled out for reduction. South Carolina has no such measures. This committee should study provisions to this end that have been adopted in other states and put this essential protection of separation of powers into place.
In summary, this Committee must recommend significant changes to correct very real threats to the integrity and credibility of the judiciary in our system of government. More limited measures such as providing for gubernatorial appointees to the JMSC may be desirable, but alone fall far short of what is necessary. We again acknowledge that there is no way to completely divorce judicial appointments from political considerations, but South Carolina can do more to protect this essential function of government.
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1 S.C. CODE ANN. § 2-19-10 et seq. (“Election of Justices and Judges”).
2 Currently, the Commission includes six sitting legislators, three from the House of Representatives and three from the Senate, and only four non-legislators. See § 2-19-10 (establishing the composition of the Commission).
3 Currently, the Commission may submit no more than three qualified applicants’ names, notwithstanding the fact that more than three may be eminently qualified to run in the general election. See § 2-19-80 (“[The Commission] shall review the qualifications of all applicants for a judicial office and select therefrom and submit to the General Assembly the names and qualifications of the three candidates whom it considers best qualified for the judicial office under consideration.”).
