The untouchables: the impact of South Carolina's new judicial selection system on the South Carolina Supreme Court, 1997-2003.

AuthorPetillo, Kimberly C.

    Although South Carolina has perennially been considered one of the nation's most rebellious states, the South Carolina Supreme Court has historically been extremely deferential to precedent. (1) However, in 1997, the South Carolina judicial system experienced a reform that significantly changed the South Carolina Supreme Court's traditional deference to past precedent. (2) As a result of a South Carolina Constitutional amendment, jurists are no longer solely elected by the General Assembly. Rather, a Judicial Merit Selection Commission reviews the qualifications of all applicants and nominates the three most qualified candidates. (3) These three nominees are then voted on by the General Assembly, and the nominee with the highest number of votes is appointed to the bench. (4)

    While some scholars argue that this change has done little to eliminate the highly political system that the previous method of judicial selection legislative election--promoted, a look at the court's decisions since the implementation of the new selection system tells a different story. (5) In contrast to the decade prior to the amendment where the court only overruled its own precedent twice, in the period between 1997 and 2003, the South Carolina Supreme Court has overruled its own precedent thirty-six times and defied the United States Supreme Court twice. (6) These numbers attest to the fact that the current bench now decides cases with a sense of independence from the General Assembly, resulting in decisions based upon their individual ideologies, rather than the political tides of the General Assembly. The willingness of the new bench to overrule past precedent indicates that, at least to some degree, the justices are shielded from the political backlash which can result from challenging the status quo in South Carolina.

    By examining criminal cases from 1997 through 2003 in which the majority chose to overturn previous case law, as well as discussing the rationale behind the court's decisions to disobey the United States Supreme Court, this study seeks to demonstrate the new trend toward judicial independence, while also identifying the underlying ideology of each jurist. Ultimately, it will be apparent that although the change to the judicial selection system resulted in greater independence for the justices, this independence came at the cost of accountability to the public or the General Assembly: arguably the only two bodies through which jurists are forced to consider the principles of majoritarianism.


    Prior to 1997, the South Carolina General Assembly had statutory authority to elect and re-elect the state's judges and justices. (7) Through a joint committee, members of both houses of the legislature reviewed the qualifications of all applicants. (8) However, the statutes enabling the committee to review the candidates did not define the qualifications to be reviewed or how they were to be weighed. (9) Moreover, the committee lacked authority to remove an applicant's name from consideration. (10) Therefore, unqualified applicants remained eligible for appointment. This process at times resulted in unqualified applicants being elected to the bench because members of the General Assembly--provided with little external guidance on the qualifications of the candidates--often elected sitting or former legislators, with whom they had experience. (11) In fact, from 1995 until 2000, all five South Carolina Supreme Court justices had previously served in the General Assembly. (12) Moreover, all of the current justices, with the exception of Justice Pleicones, were elected very shortly after ending their service in the legislature. (13) Although most of the justices first sat on the Circuit Court, current Chief Justice Jean Hoefer Toal was elected directly to the Supreme Court from the legislature. (14)

    While this connection did not go unnoticed, the General Assembly was unwilling to add credibility to the selection process and thereby relinquish its power through public elections. However, South Carolina did adopt a modified form of the Missouri Plan for judicial selection. (15) Named for the state that first adopted the system, the Missouri Plan calls for a panel of appointed commissioners to review the slate of judicial candidates based on merit and nominate for election or appointment those candidates it deems qualified. (16)

    Under South Carolina's new system, although the General Assembly retains the final vote on the appointed judge or justice, the Judicial Merit Selection Commission has the sole power to nominate candidates. (17) Unlike a true merit selection system, South Carolina's Commission consists of ten members: three members are selected by the Chairman of the Senate Judiciary Committee, two members are selected by the President Pro Tempore of the Senate, and five members are selected by the Speaker of the House of Representatives. (18) As a result of this system, the appointment of Commission members--while certainly less directly political than the previous system--has a distinct political undertone that perpetuates the presence of political influence on the judiciary.

    The judicial selection process begins when the Commission notifies the South Carolina Supreme Court, the South Carolina Bar, and South Carolina newspapers of a vacancy or an attempted reelection by a sitting judge or justice. (19) The Commission then accepts notices of intention from interested candidates who wish to be considered. (20) Upon receiving notice, the Commission investigates the candidates "as it considers appropriate." (21) Through its Judicial Qualifications Committee, the Bar has an opportunity to assess the candidates and provide feedback. (22) In addition to feedback from the Bar, the Commission established Citizens Committees on Judicial Qualifications, which allow the general public to provide feedback on the candidates. (23) Once the investigation is complete, a public hearing is held. (24) Those who are interested in testifying must appointment, merit-selected judges face unopposed public elections in which voters decide whether the judge is re-elected for another term. Id. The commission traditionally consists of seven members: three lawyers chosen by the bar association, three lay members chosen by the governor, and a sitting judge appointed to chair the committee. Id. provide a copy of their proposed testimony to the Commission at least two days prior to the hearing. (25) The Commission then calls those persons it would like to hear testify, and also has subpoena power to compel testimony from other individuals. (26) Following the hearing, the Commission must report its tentative recommendations, including their rationale. (27)

    Unlike the previous system, which provided the General Assembly with no criteria, the 1996 amendment sets forth a non-exhaustive list of specific factors for the Commission to consider. (28) In addition to specific factors, the Commission is instructed to consider "race, gender, national origin, and other demographic factors ... to ensure nondiscrimination to the greatest extent possible as to all segments of the population of the state." (29) The final report of the Commission--including no more than three nominees--is then submitted to the General Assembly for a vote, with the candidate receiving a majority vote winning the appointment. (30) Jurists seeking appointments for subsequent terms are subject to a qualifications review by the Commission, and if deemed qualified, stand for re-election by the General Assembly. (31)

    In contrast to the previous system, the Commission's restricted number of nominees prevents unqualified candidates from reaching the General Assembly. (32) The Commission's nominees are the only ones who may be considered, although the General Assembly has the power to reject the entire slate. (33) Furthermore, legislators are banned from running for judicial office until one year after either leaving the General Assembly or failing to file for re-election to the General Assembly. (34) Moreover, no member of the Commission can be considered for a judicial nomination until one year after leaving the Commission. (35)

    Another change, also enacted to lend credibility to the selection system, is a ban on early lobbying and vote trading. (36) Prior to the 1996 amendment, legislators attempted to influence the racial composition of the bench by trading support for candidates. (37) Under the new system, candidates may not seek General Assembly votes, nor may members of the General Assembly offer a pledge of support, prior to the release of the Commission's report. (38) Furthermore, "no member of the General Assembly may offer his pledge ... to vote for legislation or for other candidates, in exchange for votes for a particular candidate." (39)

    Whether the new form of judicial selection creates a more credible judiciary and achieves the necessary balance between accountability and independence will likely remain unsettled. Although opponents of South Carolina's former legislative election process argue that the new system insulates the judiciary from public opinion, proponents of the former system argue that this same insulation comes not only at the expense of accountability to the public, but also creates a system in which the judiciary is obligated to the General Assembly. (40) While proponents of the new system concede that politics are not entirely removed from the judicial selection process, they argue that the Commission serves as a buffer between the candidates and the politically driven General Assembly that elects the judiciary, thereby lessening the impact of politics on the judiciary. (41) While it is at least arguable that the merit selection system may still allow politics to permeate the judiciary, it is apparent from the justices' recent tendency to overturn past precedent and put...

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