Strings Attached

February 5, 2015

Inside Insight

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ariail strings attached

NEPOTISM, SECRECY, CONCENTRATED POWER . . .
LAWMAKERS ARE ALL FOR IT!

In South Carolina, judges are not – and cannot be – independent. That’s not because the state has bad judges: It’s because the great majority of state judges are picked by the Legislature. Sure, a South Carolina judge may render a good decision in a particular case. But if that case has any bearing on the powers belonging to the South Carolina General Assembly – or if any legislative leader has a strong interest in the case – you can kiss impartiality goodbye.

So if you want to be a judge, you’ll have to “run” for the office, treating the state’s 170 lawmakers as potential voters. You’ll have to lobby them, schmooze them, and generally say whatever you think they want to hear. Many prominent lawmakers, for their part, have openly stated that they like it this way; it allows lawmakers to “get to know” the candidates.

But before you even get to that stage, you have to get nominated first by the Judicial Merit Selection Commission, or JMSC. That’s a ten-member panel appointed by the speaker of the House, the chairman of the Senate Judiciary Committee, and the president pro tempore of the Senate. These three lawmakers (House Speaker Jay Lucas, Sen. Larry Martin and Sen. Hugh Leatherman) appoint the people who choose our judges. (Naturally, state law mandates that at least six members of the commission must be state lawmakers.)

How unusual is this system? Very. In fact, it’s fair to say that South Carolina’s Legislature exercises more power over the state’s judiciary than the legislature of any other state.

The potential for nepotism is obvious – and it’s routinely exploited by lawmakers. Indeed, our judiciary is full of the wives, husbands, friends, and allies of past and present state lawmakers.  In yesterday’s round of judicial elections, for example, at least one spouse of a lawmaker – Bill Funderburk, husband of Rep. Laurie Funderburk – got the nod from his wife’s colleagues.

The really fascinating thing about that? It’s absolutely ordinary.

Moreover, the JMSC regularly rubber stamps incumbent judges without bothering to hold public hearings. As The Nerve reported on Monday, there were 33 judicial seats screened last fall, but the JMSC chose not to hold any public hearings on 17 of those candidates.

So – lawmakers unilaterally choose the judges who interpret the laws they write. What could go wrong?

Is this arrangement likely to change soon? A petition filed with the state Supreme Court contends that the Judicial Merit Selection Commission is unconstitutional, though the high court this week rejected it; and a bill currently in the Senate Judiciary Committee – S.111 – would eliminate the JMSC and require the governor to nominate judges with the advice and consent of the Senate. But don’t expect many lawmakers to support either of these measures: The House Speaker has expressed opposition to the petition, and the chances of S.111 getting out of Senate Judiciary – chaired by Sen. Larry Martin – are virtually nil.

For the foreseeable future, then, watch closely for the strings.