Did you see the exclusive story in The State the other day to this effect:
State and federal law enforcement officials are questioning S.C. legislators about potential illegal vote swapping in February’s race that re-elected the state’s Supreme Court chief justice, multiple sources have told The State….
Did you find yourself confused in reading it? Did you think to yourself, Don’t lawmakers trade votes all the time, on all sorts of issues? Since when is that illegal?
Well, Cindi Scoppe helps walk you through all that in her column today. She explains that yes, lawmakers routinely swap votes on issues — the General Assembly would get even less done if they did not.
But she also explains how a series of horrific events in 1995 that caused lawmakers to elect less-qualified jurists to the bench led to reform, and the practice was banned — with regard to judicial selection. (And ironically, the reform was passed by a vote-swapping deal between House and Senate conferees.)
Here’s her recap of what happened back then to lead to the reform:
it starts on a sunny spring day in 1995, when the Legislature elected E.C. Burnett to the Supreme Court and Kay Hearn to the Court of Appeals and re-elected Danny Martin to the Circuit Court. Mr. Burnett and Ms. Hearn were qualified for the positions, but analyses by the S.C. Bar and the Legislature’s judicial screening committee showed that they were the least qualified candidates in their hotly contested races. The committee found Mr. Martin didn’t understand the law at all, and the Bar had declared him unfit for the bench.
As senators filed out of the House chamber after the election, then-Sen. Robert Ford bragged about how it all happened: The Legislative Black Caucus pledged 20 votes for Hearn in exchange for Horry County votes for Martin and 18 votes for Burnett in return for four Spartanburg County votes for Martin; another five Spartanburg County legislators agreed not to vote in the Martin race.
“All kind of deals was made,” Sen. Ford told reporters. “I had to sell my soul to 10 devils.”
No one denied the deals, because vote trading always had been a part of judicial elections — whether the votes involved other judicial races or legislation. And why not? Trading votes is a natural part of the legislative process….
As so often during his lamentable lawmaking career, there was the brazen Robert Ford, standing as the poster child of bad government. But of course, he was just the most visible manifestation of something much more widespread. Perhaps we even owe him a debt of gratitude for making the unsavory situation so much more obvious.
That’s all history, but the thing that deserves even more attention is this conclusion:
I supported the current system for a long time, because it was such a huge improvement over what came before. But it never was a good system, because it encourages the sort of logrolling that is alleged to have occurred in the chief justice race, and because it allows one branch of government to control the judiciary.
And if one person rules the House with an iron hand — one person who is not the governor, who is not elected by all the voters of this state, and who is not accountable to the public for his power — it allows that one person to control the judiciary. As felt so disturbingly to be the case as we watched Mr. Harrell’s treatment in our courts in the weeks and months leading up to his indictment this summer on public corruption charges.
That’s sort of new, and sort of not.
I have long held the position that we should switch to a different method of choosing judges, preferably one like the federal system — the governor nominates, and the Senate confirms. That spreads out the power across the other two branches of government, and makes sure that the one individual having extensive say in the matter is one elected by all of the people, not just one House district.
But since the reforms of the 1990s, which did much to inject merit into the current system of election by the General Assembly, I (and the editorial board) acknowledged that the system was much better than it had been, and so we let judicial selection slide to a back burner. We still advocated for change when the subject came up, but we didn’t drive it the way we did so many other issues.
The events of the past year or two — with Bobby Harrell trying to bat the judiciary around like cat with a chew toy, so soon after a dramatic example of his power in choosing justices — mean it’s time to move real, substantive reform to the front rank of priorities.
It’s high time to stop letting the Legislature choose judges, all by its lonesome.
“All kind of deals was made” should be the state government motto. Illiterate and corrupt.
As I said in another forum: Probably the best model would be appointment by the Governor, confirmation by the Senate, with the JMSC vetting the candidates and reporting the results before the Governor formally appoints.
Not sure where I fall on life tenure – which is what we have in the Federal system. I’m not opposed to it. It seems like we have a de facto life tenure for judges, anyway. Why make them keep getting elected?
I think the National Center for State Courts has done research on this. Let me see if I can find something.