“We ain’t what we ought to be; we ain’t what we gonna be, but, thank God, we ain’t what we was.”
That quote, which Martin Luther King attributed to a preacher who had been a slave, came to mind in perusing this report at The Nerve.
Basically, it tells you what we told you in the “Power Failure” series more than 20 years ago, and many times since in The State: That while our method of choosing judges in South Carolina isn’t the worst system in the country (the worst would be direct popular election, which is employed in far too many jurisdictions), it’s far from what it should be.
Back when we first wrote about it the SC bench was one of the best examples of the gross imbalance of power in SC, which we (after V.O. Key and others) called “The Legislative State.” Judges were chosen completely by and at the discretion of the Legislature, and whether you made it to the bench depended on how many friends you had among lawmakers.
Today, lawmakers still retain complete control over the selection of the judiciary, and it is to my knowledge accurate to characterize the system as The Nerve does:
Once a judicial candidate has been approved by the 10-member, legislatively dominated Commission, he or she goes on to a joint session of House and Senate for a majority vote. The vote, however, isn’t simply for or against the one candidate; it’s for one candidate over against others. That’s because 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 – “curry favor” meaning schmooze, glad hand – in order to secure the requisite number of votes. 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.
All true, near as I can tell — not having been personally present for a judicial election in awhile.
I’ll say one thing in the current system’s defense, though — it does produce better results than it did when we first started writing about it. That’s because, with Glenn McConnell’s leadership, that Judicial Merit Selection Commission was formed, and has done a pretty fair job since then of making sure those candidates that lawmakers are allowed to vote for do have real-world qualifications. So now, you still might have to be the most popular candidate among lawmakers, but you have to be the most popular among a small group of qualified candidates.
That’s a big improvement. Of course, it came about because Sen. McConnell wanted to preserve the current system. So he just made the current system better, to blunt legitimate criticism. It’s good that we have better-qualified candidates ascending to the bench. And this system is much better than direct popular election.
But it’s not as good as what we should have. The system most likely to produce a qualified, independent judiciary that stood as a full, coequal branch would be one like the federal system — the executive nominates, and the legislative provides advice and consent. That way, a judge is not the creature of any particular part of the political branches.
As to when we might get something like that, The Nerve is also accurate when it says we shouldn’t hold our breaths waiting for the Legislature to make the change willingly.