If you want to know who controls judicial elections in South Carolina, you probably could count most of them on one hand.
Under state law, the S.C. House speaker, the Senate president pro tempore and the Senate Judiciary Committee chairman appoint the 10 members of the S.C. Judicial Merit Selection Commission, which screens and nominates judicial candidates for election by the General Assembly.
South Carolina and Virginia are the only two states in which judges are elected primarily by their legislatures.
But the S.C. Legislature’s control over the judiciary goes even further: Under state law, six of the 10 members of the screening commission must be lawmakers. Virginia does not have a screening committee.
In the Palmetto State, no judicial candidate can be considered by the Legislature unless nominated by the screening commission. The number of nominees per judicial seat is capped at three, no matter how many qualified candidates there are.
The General Assembly elects judges on the family court, circuit court, master-in-equity court, Administrative Law Court, Court of Appeals and Supreme Court. In addition, county senatorial delegations largely control who serves as county magistrates.
The bottom line is that lawmakers pretty much have a stranglehold over judicial screening and elections in South Carolina. It’s a system with a long history of cronyism that continues to be criticized by in- and out-of-state organizations, including the American Bar Association.
For years, Glenn McConnell, who served as both the Senate president pro tempore and Senate Judiciary Committee chairman, appointed himself to the screening commission and alternated as its chairman every other year. The Charleston County Republican earlier this year became lieutenant governor with the resignation of Ken Ard.
The current Senate Judiciary chairman is Sen. Larry Martin, R-Pickens, who recently appointed himself to the commission, according to the commission’s chief attorney, Jane Shuler.
The other five lawmakers on the commission are Rep. Greg Delleney, R-Chester, an attorney and the current commission chairman; Rep. Alan Clemmons, R-Horry and an attorney; Rep. David Mack, D-Charleston; Sen. Jake Knotts, R-Lexington; and Sen. Floyd Nicholson, D-Greenwood.
House Speaker Bobby Harrell, R-Charleston, who appoints five members of the commission, hasn’t named himself to the panel. But he put his brother, John Harrell, a Charleston attorney, on it in 2007.
“That is not diversification,” said Constance Anastopoulo, a Charleston School of Law assistant professor, when contacted by The Nerve last week. “That is one of those things we would like to see – a different process by which the Judicial Merit Selection Commission is constituted.”
Anastopoulo, who will be the moderator of a conference in Columbia next month dealing with diversity and independence in South Carolina’s judiciary, said while the screening commission is a “great idea in and of itself in terms of qualifying candidates,” there are several problems with it besides legislative control, including:
- A lack of diversity: Only one woman serves on the panel;
- No term limits, which results in little turnover; and
- A lack of input from the South Carolina Bar, the state’s professional legal organization.The Bar submits surveys on judicial candidates, which aren’t binding; and it has no authority to appoint members to the commission.
Contacted last week by The Nerve, Barbara Zia, co-president of the League of Women Voters of South Carolina, which is sponsoring the Aug. 7 judicial conference in Columbia, said one of the goals of her organization’s two-year education project on the state’s judiciary is to have reform legislation introduced next year.
“We’re optimistic that we are going to see some changes that will make the judicial selection process more independent and more diverse,” she said.
The League of Women Voters isn’t the only organization that has studied judicial elections in South Carolina. An official with the Iowa-based American Judicature Society (AJS), a nonprofit judicial research organization, earlier told The Nerve that South Carolina is the only state in which legislators dominate a screening committee and appoint fellow members to the committee.
For that reason, the AJS doesn’t classify South Carolina as having a true merit selection system.
The Chicago-based America Bar Association, the nation’s largest professional organization for attorneys, takes the same position, according to its literature.
South Carolina voters in 1996 approved amending the state constitution to create the Judicial Merit Selection Commission after reports of legislative cronyism in selecting judges and competency issues involving some judges.
But the enabling legislation didn’t strip the General Assembly of its power to screen and elect judges.
That authority was challenged several years ago in the state’s highest court. After the screening commission in 2009 found longtime Charleston County Family Court Judge Frances P. “Charlie” Segars-Andrews to be unqualified to serve another term, Segars-Andrews filed a lawsuit against the commission and others in the S.C. Supreme Court.
Among other things, the suit contended that the commission violates the state constitution because voters never intended the Legislature to control the panel.
In a unanimous ruling in 2010, the Supreme Court dismissed the suit.
“The South Carolina Constitution expressly vests in the (Judicial Merit Selection Commission) the sole determination of a judicial candidate’s qualifications, and the General Assembly is constitutionally charged with the election and re-election of judges found qualified by the (commission),” the ruling said. “Absent an unconstitutional exercise of those powers, the Court may not intervene in these political determinations.”
Of the five justices who issued the ruling, two are former state lawmakers – Chief Justice Jean Toal and Justice Donald Beatty. And Justice Kaye Hearn’s husband, George Hearn, is a sitting legislator.
Reach Brundrett at (803) 254-4411 or rick@thenerve.org.