Editorial: We need all the allies we can get to fix how SC judges are selected
- SCCLR Newsletter
- 3 days ago
- 4 min read
By: The Editorial Staff
When South Carolina’s Legislature undertakes reforms to address a long-simmering problem, it usually avoids that topic for several years — whether that’s because lawmakers want to give the reforms time to take hold or because they’ve spent all the political capital they intend to on the topic. In either event, that’s why reformers are often reluctant to accept half-steps toward reform.
House members say they will return next year to the anti-DUI reforms that were supposed to have been included in this year's save-the-bars law and the too-generous energy reforms that didn’t put any restrictions on energy hogs; we hope they follow through. Now, as The Post and Courier’s Nick Reynolds reports, there are indications that they might actually come back to judicial selection reform in January, and if not finish the job then at least take a couple of more steps.
In South Carolina, the Legislature elects judges, after would-be judges are vetted by a legislatively controlled screening panel. The governor has no say. Last year, lawmakers agreed to let the governor appoint a third of the members of the screening panel and remove some lawmakers who had overstayed their welcome on the panel, but the Legislature remains firmly in control under the changes that took effect July 1.
The governor's tiny little role is less important than it would have been if the Legislature had not simultaneously weakened the panel, transforming it from a commission that weeds out all but the three strongest candidates to one that, in all but a few cases, merely weeds out those who are clearly incompetent. But it does mark the first involvement the governor has ever had in the selection of judges.
It’s not enough, though, given that the governor is supposed to lead a co-equal branch of government, to check the power of the legislative and judicial branches — which in turn are supposed to check his and each others’ powers.
We believe the governor should either appoint the judges with advice and consent of the Legislature or — more realistically — appoint all the members of the screening commission.
And as Mr. Reynolds reports, several legislative leaders appear to have warmed to that idea. A dodgy new political action committee says it has recruited a dozen senators and nine House members to sponsor a bill to let the governor appoint all the members of the screening commission. The most notable sponsors are House Speaker Murrell Smith and Reps. Gil Gatch and Brandon Newton, although Mr. Smith’s spokeswoman said it was premature to assume he will support any particular provision in the not-yet-public legislation.
There’s a big difference between a handful of legislators supporting legislation and that legislation actually becoming law. Particularly when, as is the case here, it’s not clear that the preeminent “supporter” is actually supporting it. But that just means it’s all the more important for people who care about the integrity of our judicial system to urge their legislators to finish the job of repairing the selection method.
The impetus for this upsurge in interest appears to be the opportunistically named DOGE SC PAC that’s running an ad on social media with over-the-top claims about the Legislature and is threatening to spend millions of dollars next year targeting legislators who don’t do its bidding. True to its character, it’s calling its proposed legislation the “Removing DEI and Restoring Separation of Powers in the JMSC Act.”
The sensationalistic DEI reference is to provisions in the screening law that require legislators in appointing members of the commission and commissioners in signing off on judicial candidates to consider “race, gender, national origin, and other demographic factors” in order to “ensure nondiscrimination to the greatest extent possible as to all segments of the population of the State.”
Our state would be better served by a bench that looks more like our state — with more black and female judges, more from rural and other underrepresented communities and more who graduated from a law school other than the one in Columbia. But these unenforceable diversity provisions have done nothing to improve the mix, and we would argue that their inclusion in the law gives a false impression of our state’s priorities — and makes the law seem like a joke to people who feel strongly about this issue. So the main problem we see with removing those provisions is that it’s indulging an effort to build a public campaign around a meaningless change in the law.
The “restoring separation of powers” part is pure fiction: South Carolina’s governor has never been involved in the judicial selection process, so there’s no separation to restore. The change would wisely create a separation.
If lawmakers feel compelled to do something to appease the organization — run by an Isle of Palms property owner who’s upset that the Department of Environmental Services is trying to make him obey state law — we hope it’s this, as it’s one of the few good ideas the PAC is backing. That, by the way, is an important reminder that organizations and individuals who take positions we find appalling can also be on the right side of some other issues. We should welcome allies wherever we find them.
