South Carolina Lawyer
Vol. 13, No. 6, Pg. 20.
Judicial selection in South Carolina: who gets to judge?
20Judicial selection in South Carolina: who gets to judge?By Kevin EberleSouth Carolina is in the minority when it comes to judicial selection and appears ready to remain there following a significant opportunity to revise the whole process. Throughout the history of the state, the appointment of judges has been a function of the state legislature. Modifications were made to the system in 1996, but the ultimate decision remained in the hands of the General Assembly.
As the 1996 reforms were being debated, some called for eliminating this historical model completely and substituting a system based on popular elections. Popular election is the most widely used system nationwide with 33 states using some form of direct vote. Judith L. Maute, Selecting Justice in State Courts: The Ballot Box or the Backroom?, 41 S. TEX. L. REV. 1197, 1201-02 (2000). In contrast, only Connecticut, Virginia and South Carolina select judges through legislative selection. Daniel R. Deja, How judges areSelected: A Survey of the Judicial Selection Process in the United States, 75 MICH. B.J. 904, 904-05 (1996).
22Whether South Carolina's system is better or worse than a system of popular elections is a question for political philosophers that will never be resolved. The argument often made in favor of the system used by states such as South Carolina is that their judges are somewhat freed from concerns of public opinion - but only "somewhat freed" because where the term of appointment is for a specific period, there is always the specter of re-appointment by those who do answer directly to the public. That strength is cited as a weakness by those who prefer the notion of popular elections. Those critics claim that judges who do not face public elections tend not to be in step with public sentiment. While popular elections no doubt produce a judiciary more aware of popular sentiment, accountability to the public is cited by opponents as a hindrance to a judge's impartiality; an elected judge must contend not just with the pressure to please the masses, but also the need to please the donors to his or her campaign.
And so the circle continues unbroken with each side pointing to the other's supposed strengths as its weakness. A third system, known as the Missouri Plan (named for the state that first adopted the system) is a twentieth century hybrid. There are variations on this merit-based system, but generally a panel of commissioners is formed by political appointment, usually to include lay members. The panel develops a slate of officers based on merit from which either the legislature or governor appoints judges. Thereafter, judges face only uncontested retention elections similar to a no-confidence vote. Fourteen states have now adopted merit selection as their sole method of selection.
During the 1990s, the legislative method came under increased scrutiny and the General Assembly was faced with the opportunity to change the method of judicial selection in South Carolina. At times, the legislature appointed certain judges who were attacked as unqualified, and the public became increasingly vocal about the perception that judges were being selected based on the good-oldboy system. For an excellent source cataloging many of the contemporaneous newspaper articles, editorials and other comments about the need for reform, one should consult Martin Driggers Jr., South Carolina's Experiment: Legislative Control of Judicial Merit Selection, 49 S.C. LAW. REV. 1217, 1226 (1998).
Many critics pointed out the fact that all of South Carolina's justices and many of its appellate judges had served in the Statehouse before joining the judicial branch, with many moving directly from the Statehouse to the courthouse. Indeed, the election of Judge Randall Bell to the South Carolina Supreme Court in 1994 was labeled a "surprise" victory in the newspapers despite 10 years on the Court of Appeals, a...