The need for judicial independence

“THERE IS NO LIBERTY, IF THE POWER OF JUDGING BE NOT SEPARATED FROM THE LEGISLATIVE AND EXECUTIVE POWERS.”

South Carolina state government is inordinately under control of the legislative branch. From the power to appoint hundreds of members to boards and commissions, to the power to elect judges, the General Assembly has far too much influence over the executive and judicial branches of government.

South Carolina is one of only two states in which the majority of judges are elected by the legislature. Many states figured out long ago that judicial appointment power should rest with the executive branch with the advice and consent of the Senate. Unfortunately, judicial independence hasn’t been a priority on South Carolina lawmakers’ legislative agenda.

S.200, currently mired in the Senate Judiciary Committee, represents true judicial independence reform. The bill proposes a constitutional amendment to provide that Supreme Court Justices, judges on the Court of Appeals, and Circuit Court Judges be appointed by the Governor with the advice and consent of the Senate. It would also repeal provisions requiring the General Assembly to establish a Judicial Merit Selection Commission. If enacted, this would take care of one of the eight reforms that are necessary before any real free-market policies will emerge in the state.

The legislative election of judges results in a judicial system where the decisions of judges may be made based off the interests of those that employ (elect) them, rather than the law itself. To be elected, potential judges must become known by the General Assembly and rely on that created relationship. Once elected, judges render decisions often with their reelection in mind, due to the possibility that if a judge were to step out of line or fight the General Assembly on issues related to the power of the legislature, they might not be re-elected.

The founders laid out clear guidelines concerning separation of powers pertaining to all branches of government, as well as specifically the judicial branch. James Madison’s definition of tyranny from The Federalist No. 47 is something we have referenced before, but it bears repeating again. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Consider also Madison’s The Federalist No. 51, in which he argues that “each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”

“The complete independence of the courts of justice,” wrote Alexander Hamilton in The Federalist No. 78, “is peculiarly essential in a limited Constitution.” Hamilton also believed “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Hamilton touched, too, on the appointment of judges, and argued that it should be as “the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers.” Hamilton was referring to The Federalist No. 76 in which he conceived the executive branch had the power “to nominate, and, by and with the advice and consent of the Senate, to appoint…judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution.”

The best solution to the blurred separation of powers problem in South Carolina, a solution based in the beliefs of the founders, is for judges to be appointed by the Governor and confirmed by the Senate. This would weaken the influence the legislature has on judicial selection and prevent judges from being elected based off of political connections rather than qualifications.

Unsurprisingly, S.200 never gained any traction this session and is set to die in committee. Lawmakers are obviously reluctant to relinquish some of their overreaching powers in favor of sensible reforms supported by the founders, and already adopted by most other states. Until reforms like this are adopted, South Carolina state government will continue to be marred by jobbery and unaccountability.