South Carolina Lawyer
SC Lawyer, July 2006, #4.
The Judicial Merit Selection Commission: History of the JMSC and the Screening Process for Judges in this State
South Carolina Lawyer July 2006 The Judicial Merit Selection Commission: History of the JMSC and the Screening Process for Judges in this State By Sen. James H. "Jim" Ritchie Jr. Are we electing the best and brightest to the bench in South Carolina? Does our judiciary reflect the diversity of backgrounds and ethnicity of our citizens? How does our system compare to other states?
These and many similar questions are often asked when lawyers, legislators and commentators discuss judicial selection in South Carolina. The state judiciary plays a vital role in the preservation of our freedoms, the protection of individual rights and the punishment of criminals in our communities. Therefore, the integrity and efficacy of our judges and the public's confidence in the process that produces our judges are central to our democratic society. This article answers many of the most often asked questions, explores the history of judicial selection in South Carolina and the reforms that created our present merit-based system, reviews our ongoing challenges and looks at new reform initiatives.
After serving on the Commission and working on this topic over the past several years and comparing our state to the judicial selection systems in other states, I have found that South Carolina is a national leader in merit-based judicial selection. Although there is much reason to be proud, there will be more reforms in the years ahead. I believe in a diverse, talented and impartial bench, and I look forward to working with my colleagues at the Bar and in the General Assembly to achieve that goal by inspiring lawyers from all backgrounds across the Palmetto State to seek public service.
How did we get here? The history of judicial screening in South Carolina and the reform movement
Our state Constitution sets selection of judges for the Supreme Court, Court of Appeals and circuit court. This selection is set by statute for our family court, Administrative Law Court and masters-in-equity. Since 1776, these judges have been elected by the General Assembly.
The Judicial Merit Selection Commission was created in 1997 to correct the problems that occurred in the 1990s when the judicial election system came under attack because it was viewed as a retirement plan for members of the legislature. Critics complained that judicial selection was a "good-old-boy" system since most of the judges elected by the General Assembly were sitting or former legislators. In fact, in the early to mid-90s, all five Supreme Court Justices and more than half of the circuit court judges had served in the General Assembly prior to being elected to the bench. Calls for reform escalated when, in 1995, two former legislators who were elected to judgeships were found "not qualified" by the South Carolina Bar.
The Commission screens judicial candidates for the S.C. Supreme Court, Court of Appeals, circuit court, family court, master-in-equity and Administrative Law Court. When the Commission was established, it was given significant authority and powers. First, it was empowered with new objective criteria under S.C. Code Ann. § 2-19-10 et seq. and constitutional requirements pursuant to Art. V. § 27 of the state Constitution in order to screen judicial candidates, as well as to screen out unqualified candidates. For example, each judicial candidate is required to meet the following nine evaluative criteria: constitutional qualifications; ethical fitness; professional and academic ability; character; reputation; physical health; mental stability; experience; and judicial temperament. All of the candidates, no matter what judicial office sought, must be a citizen of the United States and of South Carolina, be at least 32 years of age, have been a licensed attorney at law for at least eight years and have been a resident of South Carolina for five years preceding his or her election.
Second, the General Assembly retained the power to elect judges but only from those candidates found qualified and nominated by the Commission. Pursuant to § 2-19-80, the Commission must limit its slate of nominations to three candidates. If the Commission determines that fewer than three candidates are qualified for a nomination, it must submit a written explanation as to why the Commission is submitting less than three names.
Third, members of the General Assembly were prohibited from being elected to a judicial office while serving in the General Assembly and for a period of one year after the member ceases serving or fails to file for...