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In truth, we have two-and-a-half branches of government, not three.
That's evident in a state Supreme Court ruling in a lawsuit filed by aCharleston Family Court judge who lost her bid to be reappointed.
The high court ruled against her, citing the constitutional authority the legislature has to elect judges and its authority to set the rules by which that is done.
The justices make no bones that this process is political. They call judicial independence "the elephant in the room" in this case. In fact, they write, "we are reminded that it is a chilling threat to judicial independence for judges to approach decision-making knowing that the difficult and sometimes unpopular decisions they must make will be resurrected in the re-election process through a political lens."
Still, the court ruled, the constitution states that legislators elect the judges, and they determine the rules by which it is done.
In 1996, the people of South Carolina were promised a better system. We were asked to approve a constitutional amendment that would set up a body to review the qualifications of those seeking to be judges. No one can be elected judge absent this group's recommendation.
Previously, we had the Joint Legislative Screening Committee, which, as its name implies, was made up of lawmakers. The result was a fast track for retiring legislators from the General Assemblyto the bench.
Now, something called the Judicial Merit Selection Commission screens applicants for these important positions.
Its name signals an independent review of a person's qualifications, but there's a catch: Six of 10 members of the commission are legislators. The other four are appointed by the Speaker of the House and the chairman of the Senate Judiciary Committee.
In the case of the Charleston judge, the selection commission cited her failure to remove herself from a 2006 divorce case in which one of the lawyers had a financial connection to the law firm of the judge's husband and her service on the board of the Office of Judicial Conduct.
The state Court of Appeals and the Commission on Judicial Conduct had already determined that she had done nothing wrong. But the person who had wanted her off the divorce case took his complaint to the selection commission, and the commission agreed with him, finding her unqualified.
She had been elected judge in 1994 and reappointed in 1998 and 2004. That means the Merit Selection Commission found her qualified twice over. The justices state in their ruling that she has served "ably and with honor" and note that the state House of Representatives honored her for her years of volunteer service to Charleston County Juvenile Drug Court.
But her decision in 2006 was her undoing in 2010.
In a case closer to home, the high court came to essentially the same conclusion in a lawsuit brought by a Beaufort County lawyer and the S.C. Public Interest Foundation over the Merit Selection Commission's screening of candidates for a 14th Circuit judgeship.
"The state constitution, in unequivocal terms, vests the power to determine the qualifications for judicial candidates in the General Assembly," the ruling states. "Were we to review this case, this court would be delving into the decision-making process of the very body that determines whether the members of this court are qualified to seek election to the bench."'
The American Bar Association, in its report "Justice in Jeopardy," calls for states to establish neutral, diverse, nonpartisan bodies to assess and appoint judicial candidates. It recommends appointing judges for a single, lengthy term, or until a specified age.
Not surprisingly, this ideal is far from the norm. The Supreme Court points out in its latest ruling that all but three states impose some sort of re-election process.
But they also write, "Judicial independence is not for the protection of judges, although it is often thought of in that context today. The principle of judicial independence is designed to protect our system of justice and the rule of law, and thus maintain public trust and confidence in the courts.With judicial independence, the winners are everyone."
Conflicted only begins to describe our Supreme Court.
As we stated in 2006, under ourpresentsystem, we can end up with very good judges, and the screening process has helped. But there are no guarantees. How much better it would be if we could get closer to that ideal of the most qualified person being seated on the bench.
To do that, we need to greatly reduce the role of lawmakers and the influence of politics.
