It's Tough To Give It Up

Yesterday, the South Carolina State Legislature concluded a rather contentious round of Judicial Elections by selecting S.C Appeals Court Justice Donald Beatty to the State's Supreme Court. Of course, in typical South Carolina fashion, in doing so, they unapologetically passed on a Judicial candidate who, to quote The Sun News, had "[more] experience [and a higher] Bar Association rating:" the Chief Justice of the State's Appeals Court, Kaye Hearn.

In other words, the S.C State Legislature didn't feel that it needed to select the most qualified Justice for the position. You see, the winner of this State Supreme Court nomination, Justice Beatty, happens to be black, and, thanks to the fact that only 1 African-American has served on the State Supreme Court since Reconstruction, in recent years the Legislature has taken some heat for the lack of 'diversity' on the Bench. So to be blunt, the election of Beatty to the S.C Supreme Court was the purest form of Legislative politicking and political ass-covering. Indeed, to make matters worse, the 3rd Candidate for the position, Appellate Court Justice Brian Williams, necessitated multiple rounds of balloting for the position, because a solid block of Legislative Republicans refused to vote for Beatty, whom they deemed 'too liberal'. In fact, at the end of the day, the Justice who, on paper at least, appeared to be the most qualified candidate for the job ended up a distant 3rd in a contest of 3.

Confused yet? Heh, you probably should be - the politicking, bargaining and outright vote-swapping which go into South Carolina Judicial Elections have become notorious in the last decade. Indeed, the blatant dubiousness of the behind-the-scenes action that went into South Carolina Judicial Elections prompted, back in 1997, the creation of a Judicial Merit Selection Committee; in order that South Carolina's abominable method of Judicial Selection might be made somewhat less worse.

See, South Carolina, along with Virginia, is one of the last 2 States in the Union which select the Judges for the top 3 State Courts (Supreme, Appeals, Curcuit) via an election within the State Legislature. As you might expect, this particular system not only invites but enourages the practice of cronyism; and, indeed, of the 14 Justices serving on South Carolina's Supreme and Appeals Courts, 9 of them were, at one point in their lives, members of the State Legislature. In neighboring States (excluding Virginia, of course) similar Courts have generally between 0 and 2 members with such experience - despite the fact that all such States have more than 14 Judgeships available.

Moreover, on top of the blatant cronyism found in this Judicial Selection method, one of course finds the aforementioned occurrences of vote-swapping, bartering and deal-making. While these are, unsurprisingly, typical features of the Legislative (lawmaking) process, one would think that when it comes to selecting Judges for something as important as your State's Supreme Court, Legislators might go out of their way to burden themselves with the efforts necessary to determine and select the Judge best qualified for the available position. Afterall, the Judicial Branch of Government is, in theory at least, supposed to be the most objective and impartial of the 3 Branches. Sadly, this is not the case in South Carolina. Politics, interest groups, and in-State regional influences are what determine the awarding of South Carolina judgeships - not credentials.

The dubious nature of this politicking got so bad that, in 1996, even the typically lackadaisical residents of South Carolina were forced to take notice and demand reform. The result was the adoption of a new State Constitutional Amendment, the following year, mandating that all Judges 1st be approved by a Judicial Merit Committee before being voted upon by the State's General Assembly. Of course, in a political maneuver that would have made even the slickest of Lawyers quite proud, the new amendment was worded such that 6 of the 10 people sitting on the Merit Committee are none other than elected members of the State Legislature.

In other words, the core nature of the system remains the same, South Carolina's State Legislators, exclusively, select our State's Judges, and thus the flaws of the old system remain with us in the new - and that's why South Carolina needs a change. Legislative Selection of Justices is, to put it mildly, an outdated and downright terrible method for selecting Judges. I mean, if the 3 branches of Government are to be equal, doesn't it seem a bit irrational that one of the 3 would be entirely a function of another? But that's what South Carolina has - the Judiciary Branch of the South Carolina Government really is just an extension of the State Legislature. Couple that fact with the fact that the S.C Governor remains one of the weakest such officers in the Country, and you have what is, relatively speaking, one of, if not the, most powerful State Legislature in the Union.

When it comes to Judicial Selection, there is, admittedly, no easy answer. However, there is one, very clear, wrong answer - Legislative Selection. South Carolina would greatly benefit by changing its Judicial selection process to something which closely resembles the Federal model. In other words, Gubernatorial appointment with State Senate approval. In doing so, this State would go a long ways towards solving the two problems I mentioned above: the dependency of the Judiciary and the weakness of the Chief Executive.

Not that I expect the issue to be raised anytime soon, especially by the State Legislators who stand the most to lose by a change in the process. Besides, change is something that rarely happens quickly in South Carolina politics - something which, given its people and the all-powerful nature of its State Legislature, should come as no great surprise.