SC Legislature still picks judges if governor has some input
- SCCLR Newsletter
- Feb 7
- 4 min read
By: Cindi Ross Scoppe
There’s plenty of room for debate about the particulars of the bill before the House this week to give the governor control of the Legislature’s judicial screening panel.
There’s something deeply disturbing about the reversal we’ve seen from House leaders since a big donor who’s losing a big court case threatened to primary any Republicans who didn’t back his proposal.
Although we should judge legislation on what it does instead of why it does it — which is why I support H.4755 — critics are right to criticize their colleagues' efforts to placate a sore loser who’s trying to manipulate our courts to his personal advantage.
And then there’s that whole “DEI” matter. I'm fine with striking the requirement that the screening panel consider maybe possibly thinking about race, gender, national origin and other demographic factors in nominating judicial candidates. This clearly hasn't happened, and having it on the books gives the public an incorrect impression of how S.C. government works.
But instead of just removing that language, the bill replaces it with a directive that “race, gender, sex, sexual preference, color, religion, national origin and other intersectional identifiers, markers, or any diversity, equity, and inclusion criteria, philosophy, or frameworks, shall not be considered by the commission at any time, for any reason.”
Set aside whether we should specifically ban considering race or sex or other specific demarcation criteria. Let’s look at what adding a ban on considering "diversity" means.
It means you can’t say that way too many of our judges are from big cities or from single-practitioner law firms or we need more judges who are first-generation college grads or who are younger or who are older — or any such differences that any employer would of course consider in rounding out a workforce.
Such differences couldn't even be used as tie breakers: These two candidates are equally qualified by the numbers, but we’ve just got too many judges who did both their undergraduate and graduate work at USC; it’d be better to nominate the one who was a Clemson undergrad. Or who went to an Ivy League college. With this language, I guess the panel has to toss a coin to decide between those two equally qualified candidates. Because contrary to the “anti-DEI” refrain, “diversity” means a lot more than race or gender or sexual preference. It comprises, quite literally, every difference between you and the next guy.
But there's one criticism of the legislation that is 100 percent illegitimate. It’s the idea, advanced to varying degrees by most critics, that letting the governor pick the members of the Judicial Merit Selection Commission strips the Legislature of its power to elect judges. As Rep. Spencer Wetmore put it at a Judiciary Committee meeting last month: “If the governor elects JMSC, the governor elects the judges. Period.”
Rep. Wetmore argued that since governors could appoint and remove commissioners at will, they could “simply direct their nominees to nominate only one candidate, and then the Legislature is left with in name the power of election but no actual choice, no actual check on the other branches of government.”
It’s rich for critics to complain that allowing gubernatorial input would strip the Legislature of its ability to check the other branches of government, because the No. 1 reason by far that the governor needs a role in the judicial selection process is to provide those checks, which no one can seriously argue exist when the Legislature single-handedly selects the judiciary, while the governor sits on the sidelines twiddling his thumbs.
Now, there’s no question that the commission has had tremendous say over who our judges are; that was by design. It traditionally has had two jobs: to decide which candidates meet the legal qualifications to be judges and then, if there were more than three qualified candidates for a position, to nominate the three it considered most meritorious. So as long as there's more than one legally qualified candidate, it's impossible for the commission to winnow the field to only one candidate.
That mandate to winnow the field was what put “selection” into the Judicial Merit Selection Commission, and that was supposed to put "merit" in it, although there is disagreement on whether that succeeded. But the Legislature changed the law in 2024 to raise the cap to six, which means unless seven or more candidates file — which is uncommon — the Legislature can consider all the candidates.
Before we go on, I want to make sure you get this part: With the cap all but eliminated, the “merit” and the “selection” parts are gone too. The commission is back to being simply a screening panel.
The commission was stripped of its merit selection role because of long-held allegations that it stacked the deck — nominating the candidate it favored along with the two weakest candidates. It would take a much larger field of candidates than I’ve ever seen to do that under the new six-candidate law.
It wouldn’t be possible with the governor appointing the commission either, unless he convinced five ringers to file for every race, which would be asking a lot even from the most loyal loyalists, because the screening process involves a grueling investment of time.
And even if he managed to do that, the Legislature still has an ultimate check on the commission — regardless of who appoints it: It can reject the entire slate of candidates and tell the commission to come up with new nominees. And it can keep doing this as long as the commission keeps sending candidates the Legislature doesn't want to elect.
Letting the governor appoint the members of the screening panel will ensure that lawyer-legislators can't serve on it, which we desperately need, and it'll nudge us in the direction of checks and balances. But the elimination of merit and selection means it won't change nearly as much as it would have before 2024.
Click here for more opinion content from The Post and Courier.
