By Austin Graham

            Among the states, a relative variety exists in the methods employed for selecting state court judges, including partisan elections, nonpartisan elections, gubernatorial appointment, merit-selection systems, and legislative appointment. Out of these, merit-selection systems are the most popular, with over twenty-five states adhering to this process. Judicial elections are the second most common scheme with at least twenty-one states utilizing either partisan or nonpartisan elections to choose their state court judges. The least common system is legislative appointment; only Virginia and South Carolina delegate appointment of the judiciary to state legislators.

South Carolina always has relied on its state legislature, known as the General Assembly, to choose members of its highest court. A 1996 amendment to the state constitution, however, modified South Carolina’s appointment process by creating the Judicial Merit Selection Commission. The Commission is a ten-person body, composed of six members of the state legislature and four members of the general public, responsible for screening judicial candidates and selecting up to three nominees for an opening on the Supreme Court of South Carolina. The Commission’s nominees subsequently are subject to a vote before the entire 170-person General Assembly, and the nominee with the most votes procures a ten-year term on the five member Supreme Court of South Carolina. Justices can be reelected by the legislature to subsequent ten-year terms until reaching the age of 72, after which state law mandates their retirement. South Carolina has the distinction of being the only state where legislators both nominate and appoint state judges.

Proponents of the legislative appointment scheme assert that the method lessens the influence of special interests over judicial selections since statewide political advertising is useless under the scheme’s framework. Furthermore, supporters argue the legislative appointment process reduces political campaigning by judicial candidates, thus preserving the candidates’ credibility as “neutral arbiters” among the public. Another mode of judicial selection, the judicial election, has received substantial criticism for its politicizing effect on the judiciary. A recent study on campaign contributions’ effect on judicial behavior found that judges’ partiality to business interests increased in relation to the amount of corporate support provided to their election campaigns. The study also revealed that campaign contributions to state supreme court candidates between 2000 and 2009 more than doubled the amount given to such candidates between 1990 and 1999.

The risks of special interest influence and judicial politicization in a legislative appointment system are less significant than in election-based systems, but related dangers are present. The insular nature of the legislative appointment process, in which a relatively small number of people are responsible for selecting the most coveted judicial positions in the state, enables special interests to narrow their lobbying focus in comparison to the context of statewide judicial elections. Lobbyists thus can press legislators to appoint judicial candidates whom they consider amenable to their various interests. In addition to directly lobbying of legislators, special interests can influence judicial appointments through advertising and publication of legislative rankings, as a member of the General Assembly noted recently. Politicization concerns similarly persist under a legislative appointment system since judicial candidates must present themselves as sympathetic to the political aims of legislators in order to procure votes for appointment.

Besides special interest concerns, South Carolina’s legislative appointment process presents its own distinct set of issues. First, control of the Judicial Merit Selection Committee is dominated by a handful of legislators with critical control over the judicial nomination process. This select group has garnered accusations of operating a system of political cronyism, as the Commission often nominates former legislators for judicial openings.  This small group’s influence and domination over the appointment process is underscored by the lack of term limits for Commission members. A second criticism of South Carolina’s legislative appointment system is that the South Carolina Bar Association is devoid of any real influence over judicial appointments, aside from submitting non-binding candidate surveys to the legislature. The lack of authority given to the state’s predominant professional legal organization implies a want of consideration for the ethical histories of judicial candidates in the appointment process.

A viable and popular alternative to legislative appointment of judges exists in merit-selection systems. Under merit-selection systems, a special commission compiles a list of qualified judicial candidates and submits the list to the governor. Depending on the state, the governor may then directly appoint the next judge from the list, or submit her preferred nominee to the legislature for final approval. Merit-selection systems usually incorporate retention elections in which voters are asked to cast a ballot in favor or in opposition to retaining an appointed judge after a designated period of time. Supporters of merit-selection systems range from the American Bar Association to former U.S. Supreme Court Justice Sandra Day O’Connor. The great benefit of merit-selection systems is that, through their combination of appointment and citizen evaluation of judicial performance, the schemes avoid politicizing judicial selection while still maintaining judges’ accountability to voters. The imposition of a merit-selection system in South Carolina likely would be a meaningful upgrade over the state’s current system.

An interesting development occurred earlier this year involving the Supreme Court of South Carolina. Justice Costa Pleicones announced he would challenge Chief Justice Jean Toal for the preeminent position on the state supreme court. Justice Pleicones’s challenge severed a longstanding tradition among South Carolina’s associate justices of refusing to challenge the seat of the chief justice. In fact, Chief Justice Toal is the first chief justice since the 1800s to face opposition in her bid for re-appointment. Whether the General Assembly will continue the break from tradition and vote out Chief Justice Toal remains to be seen, but Justice Pleicones’s challenge demonstrates that departure from an antiquated status quo is possible in South Carolina.



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