South Carolina is only one of two states in which its legislative leaders control the makeup of a panel that nominates judicial candidates, The Nerve found in a review of judicial screening committees nationwide.
But unlike in South Carolina, where the Legislature also mainly controls which judges are elected – from the Supreme Court down to trial-level circuit and family courts – in Tennessee, the governor appoints nominated judges to that state’s appellate courts while judges in lower courts are selected in public elections.
By law, six members of South Carolina’s 10-member Judicial Merit Selection Commission are state lawmakers – an organizational structure not found anywhere else in the country, The Nerve’s review found. In contrast, no state lawmakers serve on Tennessee’s 17-member nominating commission.
Nominating, or screening, commissions play an important part in how judges are selected in many states. In the Palmetto State, the General Assembly can elect only those judicial candidates nominated by the Judicial Merit Selection Commission.
The stakes are even higher this year in South Carolina, as the screening commission for the first time will nominate candidates for six new family court seats and three additional circuit seats created by the Legislature in this year’s legislative session. Screening hearings for those seats and existing judgeships are scheduled for November.
South Carolina and Virginia are the only states where their legislatures play a primary role in electing judges. Unlike South Carolina, Virginia does not have a judicial nominating commission.
Who gets appointed to South Carolina’s nominating commission currently is controlled by three lawmakers – House Speaker Bobby Harrell, R-Charleston, who put his brother on the panel; Senate Judiciary Committee Chairman Larry Martin, R-Pickens, who earlier this year became the commission’s vice chairman; and Senate President Pro Tempore John Courson, R-Richland.
In recent years, there were just two power brokers: Harrell and Glenn McConnell, who was both the Senate president pro tempore and the Judiciary Committee chairman. McConnell, a Charleston County Republican, routinely nominated himself to the screening commission and served as its chairman in alternating years; he became lieutenant governor earlier this year with the resignation of Ken Ard.
Under state law, the House speaker appoints five of the 10 members of the nominating commission; two are appointed by the Senate president pro tempore and three by the Senate Judiciary Committee chairman.
Besides Martin, the other five lawmakers on the commission are Rep. Alan Clemmons, R-Horry; Rep. Greg Delleney, R-Chester and the current commission chairman; Sen. Jake Knotts, R-Lexington, Rep. David Mack, D-Charleston; and Sen. Floyd Nicholson, D-Greenwood.
The Nerve’s review of information compiled by the Iowa-based American Judicature Society (AJS), a nonprofit judicial research organization, found that 36 states have judicial nominating commissions, at least nine of which, including South Carolina, allow for legislative appointments or confirmation of members of screening commissions.
But in seven of those states that have legislative input – Arizona, Connecticut, Hawaii, Idaho, Iowa, New Mexico and Vermont – the authority to appoint nominating commission members is shared among other groups, so lawmakers don’t have as much control over the process as in South Carolina, The Nerve’sreview found.
In Tennessee, the House and Senate speakers control who gets appointed to that state’s screening commission, which makes nominations in all vacancies on the state’s appellate courts and interim vacancies on its trial courts. For each of those judicial seats, the commission selects three nominees for recommendation to the governor. In South Carolina, nominees for each judicial seat voted on by the General Assembly are capped at three.
The AJS does not classify South Carolina as a “merit selection state,” K.O. Myers, the organization’s director of research and programs, told The Nerve in a written response last week.
“Although there is a nominating commission, all of the commissioners are chosen by legislators (in fact a majority of them must be serving legislators), and the final decision on the appointment is made by the (General) Assembly,” he said.
“Since so much of the selection process is concentrated in the Assembly,” Myers continued, “we feel that’s more accurately characterized as a legislative appointment system rather than true merit selection.”
South Carolina’s system also doesn’t meet standards adopted by the Chicago-based American Bar Association – the nation’s largest voluntary professional legal organization.
In a 2000 report, the ABA’s Standing Committee on Judicial Independence noted that a nominating commission should “maintain its independence from all inappropriate influences, particularly from the appointing authority, and should operate in a manner that instills public confidence and encourages applicants from a broad range of personal and professional backgrounds.”
But Bob Wells, the longtime executive director of the South Carolina Bar, the state’s professional legal organization, doesn’t see any pressing need right now to change the way judges are nominated in the Palmetto State.
“We’ve never taken a position that we should make appointments to the (nominating) commission,” Wells told The Nerve last week.
As for American Judicature Society’s criticism of South Carolina’s nomination process, Wells said, “I don’t think they have an understanding of how things operate in South Carolina,” adding that the AJS didn’t accept an offer by the South Carolina Bar to participate on an AJS panel on judicial nomination commissions.
Wells said although the South Carolina Bar doesn’t appoint anyone to the Judicial Merit Selection Commission, his organization has a voice in which judges are nominated through anonymous electronic and phone polling of lawyers, the results of which are provided to the commission.
The Nerve’s review of AJS information on judicial nominating commissions found that at least 19 states give state or local lawyer groups a role in who is appointed to their states’ commissions.
In at least 15 states, including Georgia and North Carolina, the governors appoint most or all of the members of their states’ judicial screening commissions, though in North Carolina and several other states, those panels are used only to fill mid-term vacancies, according to The Nerve’s review.
Unlike South Carolina, those states rely on gubernatorial appointments, with or without the consent of lawmakers; popular elections, whether partisan or non-partisan; or a combination of systems to fill judicial seats.
In South Carolina, the Legislature elects Supreme Court, Court of Appeals, Administrative Law Court, circuit and family court judges. Master-in-equity judges also are screened by the Judicial Merit Selection Commission, but are appointed by the governor with the consent of the General Assembly.
The Legislature’s election power is in addition to its control over the Judicial Department’s annual budget.
County magistrates are appointed by the governor with consent of the Senate, while local municipal judges are selected by their respective town or city councils.
County probate judges are the only popularly elected judges in the state.
Nerve intern reporter/researcher Roy Harmon contributed to this story. Reach Brundrett at (803) 254-4411 or rick@thenerve.org.