S.C. Supreme Court Elections – Quick and Quiet

WHY YOU HEAR NOTHING ABOUT YOUR NEW SUPREME COURT JUDGES

When President Trump nominated Neil Gorsuch to the U.S. Supreme Court one year ago, the nation’s media, political class, judicial interest groups, and citizenry began to debate Judge Gorsuch’s merits and record. That public scrutiny continued throughout the Senate hearing process that ended with Gorsuch’s eventual confirmation. It was, perhaps, a messy introduction to the High Court, but it was characterized by open discussion and debate.

On the same day Gorsuch was nominated, Judge George “Buck” James secured a spot on the South Carolina Supreme Court. If you’re like the vast majority of South Carolinians, you heard nothing about it – nor, most likely, have you heard that tomorrow, another state Supreme Court seat will be filled (along with over twenty lower court seats).

There has been no nomination by a governor, no publicized announcement, very little debate on blogs and editorial pages, and virtually no discussion among citizens.

That’s because in South Carolina state legislators unilaterally choose almost all state judges, including Supreme Court justices. The governor has no part in the process.

The difference is instructive. Supreme Court nominations are high-profile events in Washington because the U.S. Supreme Court has the power – and often the inclination – to strike down Congressional laws and executive orders as unconstitutional. Supreme Court elections in South Carolina (they’re called “elections” because 170 lawmakers are the electors) are low-profile events in Columbia because the state’s high court is simply a weak arm of the legislature.

Who controls the judiciary?

And it’s not just the legislative branch that controls the judiciary. In particular, 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 ten must be lawmakers: the House speaker appoints five, the president pro tempore appoints two, and the Senate judiciary chairman appoints three.

So – three lawmakers appoint the ten-member Judicial Merit Selection Commission that nominates judges, and six of those ten have to be lawmakers.

Just how unusual is South Carolina’s judicial appointment system?

• South Carolina is one of only two states in the nation (the other is Virginia) in which the legislature controls both the nominating and appointment process of state judges.
• We are one of two states (the other is Tennessee) with a judicial nominating committee appointed solely 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 sole 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-seven 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 ten-member, legislatively dominated Commission, he or she goes on to a joint session of House and Senate for a majority vote. It’s not simply and up-or-down vote on one candidate, however; it’s a vote from among two or three candidates. 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 in order to secure the requisite number of votes. Accordingly, in the run-up to a judicial election, one can see candidates for judgeships in the Statehouse garage lined up to shake hands with lawmakers as they enter the building – an unusual spectacle that captures the relationship between the state’s legislature and judiciary. 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.

Case in point: A short and simple bill introduced last year – S.386 – would do just that, yet has languished in the Senate Judiciary Committee since it was filed.

Of course, lawmakers typically don’t give up power unless they’re energetically encouraged to do so by engaged citizens.

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