SC should check how judges are selected

info@islandpacket.comDecember 2, 2013 

Gov. Nikki Haley and her likely Democratic opponent, state Sen. Vincent Sheheen, D-Camden, are firing the first shots of the 2014 gubernatorial race, trading jabs over the state's 300 plus magistrates.

Haley is accusing Sheheen of "scandalous" behavior for having at least eight court cases pending before magistrates that he recommended for the bench. In South Carolina, the governor appoints magistrates -- county-level judges who preside over cases that carry penalties of up to 30 days in jail and/or a fine not exceeding $500. The governor bases the appointments on recommendations from the local senator or senators.

Sheheen has agreed that the practice should end and has introduced and supported legislation to do just that. He also points out that the court cases in question -- which range from speeding offenses to trespassing to assault and battery -- are jury trials, meaning the magistrate will not get the final say.

The fight will certainly continue through Election Day and the new legislative session.

But we hope that it starts a bigger conversation than just which of the candidates is more "ethical" and worthy of the office. Instead, it gives the state a rare moment to consider taking the Legislature completely out of the judicial appointment process.

Consider: State lawmakers hold tremendous power, appointing all state judges from the state Supreme Court to the Court of Appeals to the Circuit Court to the Family Court.

South Carolina is one of only two states where this is true. (With the appointment of S.C. magistrates, the governor and the legislature have a say.)

South Carolina is also the only state in which the legislature is involved in both the nominating and appointment of state judges, a scenario ripe for favoritism and impropriety. And the state's Judicial Merit Selection Commission, whose 10 members nominate judges, is composed of six lawmakers.

As if that isn't legislator overkill, three of the state's top lawmakers appoint the 10 members on the commission.

The result: By the time a state judge ascends the bench in South Carolina, they're beholden to lawmakers in ways that do not serve the public and work directly against the notion of judicial independence.

But to reform the judicial branch would require lawmakers to do the thing they least want to do: Give up power. That won't happen unless the public takes advantage of this rare election year, during which ethics reform is taking center stage, and demands it.

To his credit, Sheheen has voted for an amendment (albeit an unsuccessful amendment) to ban lawyer-legislators from appearing before magistrates who they recommended for appointment. He also has introduced legislation requiring the state Supreme Court justices to recommend magistrates instead of senators.

But it would be difficult, perhaps impossible, to ensure lawyer-legislators would not appear before a judge they recommended in the state's many small, rural counties. And a large percentage of the state Senate is composed of lawyers, making it a problem that would come up again and again.

Meanwhile, turning it over to the state Supreme Court justices is unlikely to fix the problem either. Justices likely lack the time to screen candidates for magistrate positions. The result: The work would fall to staff members or, most likely, senators would be consulted on who is the best pick. Thus, senators would still have the final say, just in an indirect way.

Ultimately, the choosing of magistrates is small potatoes compared to the other flaws in how state judges are appointed.

A bigger discussion on overhauling the entire judicial appointment process is needed.

South Carolina could consider a merit-based system, similar to Florida's For appellate judge appointments, the governor chooses from a list recommended by the Judicial Nominating Commission (whose members are not selected by the legislature).

When the justices' terms expire, their names appear on the general election ballot for a merit retention vote. If a majority of voters do not support retaining a judge, the governor appoints a replacement who has been screened by the commission.

While some states employ a direct popular election, this too is problematic, as lawyers who appear before them are apt to be large campaign donors. Turning judges into politicians is not the fix.

Another possibility: Model the state's system after the federal one. The governor would nominate, and legislators would advise and consent. At the very least, no judge would be beholden to just one governmental branch.

Many options exist, and now is the time to start these discussions. It will likely take years to find solutions, but we can at least get started while ethics reform is a hot topic.

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