Judicial Court Solicitor calls for change in how S.C. picks judges

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Legislature should reform selection of SC judges

By: David M. Pascoe

South Carolina needs immediate judicial reform. I wholeheartedly agree with Governor McMaster’s comments regarding the manner in which our judges are selected that, “the public’s confidence in this arrangement is waning.” To foster immediate reform, the legislature should change the composition of the Judicial Merit Selection Commission (JMSC). 

Currently, judges for courts of record—that means circuit, family, and administrative law court judges, as well as appellate judges on the Court of Appeals and Supreme Court—are elected by the state legislature following an opaque “screening” process. The actual election of a judge occurs during a joint session of our state House and Senate.  The entire process is controlled solely by the legislature, which creates conflict with our separation of powers. 

Some may prefer gubernatorial appointment of judges with advice and consent; others may prefer public election. These ideas and others must be thoroughly studied. However, such comprehensive reform may take years to enact and would require constitutional amendment. South Carolina does not have “years” and must take immediate steps to restore integrity in our selection process. 

Others support our constitutionally mandated system of legislative elections—–something unique to South Carolina and Virginia. Reasonable minds can differ as to which system is best. My insistence on the need for reform is not ideological. Instead, it stems from a feature unique to our system that is clouded in secrecy and often dictates the outcome before legislators cast a single public vote.

The Judicial Merit Selection Commission routinely predetermines the outcome of judicial elections by exercising extraordinary power to limit the number and types of candidates legislators will consider. The legislature has long elected judges in South Carolina, but JMSC is relatively new. JMSC was created in 1997 with an amendment to the S.C. Constitution with the stated purpose to consider “the qualifications and fitness” of judicial candidates. The rules governing the JMSC are statutory and altering it would only require a simple majority. In practice, this process allows a select few lawyer-legislators to exercise tremendous power on the JMSC, and the law limiting the number of candidates JMSC can send to the legislature to three gives those legislators an opportunity to fix the outcome. The passage of two simple pieces of legislation would eradicate these problems. 

First, legislation requiring JMSC to screen out all qualified candidates and provide a written explanation to any candidate deemed unqualified. This would eliminate backroom politics designed to advantage one candidate over others and allow the General Assembly the maximum number of qualified candidates to choose from during a public vote. 

Second, legislation improving the composition of JMSC by excluding lawyer-legislators from being appointed to the Commission and giving the Governor a role in appointing JMSC members. Currently, powerful legislators appoint all the members of the Commission. Presently, six of ten JMSC members are sitting lawyer-legislators. This legislation would end the practice of giving a handful of legislative insiders power to pick the candidates. 

This proposed legislation will not make our system perfect—no system is. But it will go a long way to ending the insider game on judges and giving the public confidence that the best candidate is being selected during a public vote. 

David Pascoe is the elected Solicitor for the First Judicial Circuit, which includes Calhoun, Dorchester, and Orangeburg Counties.



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