Tipping the Scale

February 6, 2014

Inside Insight

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ariail tipping the scales

Yesterday the South Carolina legislature re-elected Supreme Court Chief Justice Jean Toal to her position with a vote of 95-74 over Associate Justice Costa Pleicones. There were quite a few notable points from what is being called an historic race, including the fact that there was a race at all. Rarely – if ever – is a Chief Justice in South Carolina challenged for re-election. And rarely, if ever, does the public pay attention when judges are elected in our state.

This time was different. Activists got engaged on an unprecedented level, and for the first time many South Carolinians got a glimpse of how their judges are chosen – through legislative deal-making and back-room meetings with judges lobbying lawmakers for votes. Citizen engagement in what is typically an insider process was a positive result of the election yesterday, and makes it more likely that the process by which judges are elected will finally be changed.

Citizens are more aware than ever that our judges are elected by the legislature (one of only two states in which the legislature plays a primary role in electing judges) and also that candidates for the bench are first chosen by the Judicial Merit Selection Commission, a 10-member committee selected by legislative leaders (half of which is appointed by the Speaker of the House, the other half by two senate leaders).

This week’s election of the Chief Justice of the Supreme Court sparked a firestorm by activists in a process in which engagement is usually limited to insiders. Activists are still angry over the 2012 election debacle in which the Court threw almost all challengers off the ballot on a technicality. Nor have they forgotten the Court’s ruling to let the legislature take the federal stimulus money over then-Governor Sanford’s objections. That ruling was among the first that made citizens realize they had so little control over their own elected officials.

Those issues were reason enough to motivate some citizen involvement, but what raised the engagement to an even higher level was the revelation that the Chief Justice chooses the judges who preside over cases arising from a state grand jury indictment. The reason for that is not clear, and the process may well make sense when it’s further examined. But in the case of this election, it raised concerns because the Speaker is under grand jury investigation himself, and it’s no secret that he was aggressively promoting the reelection of Chief Justice Toal.

No one has suggested Justice Toal did anything improper. That’s not the point. The point, rather, is that this is one more potential conflict among the many that have been exposed in our state’s corrupt government structure. The election of judges by the legislature is becoming a higher priority concern, along with the processes by which our state’s most powerful politicians are held accountable.  The unparalleled concentration of power in the hands of the House Speaker and other legislative leaders has created a climate in which any conflict raises red flags for citizens who no longer trust the system to work.

It’s bad enough that to become a judge in South Carolina candidates are screened by a committee chosen by three legislative leaders, then forced to “campaign” for lawmakers’ votes in the State House lobby, parking garage, and wherever else lawmakers are found. It’s worse still that legislative leaders are in the position to trade votes for favors when they choose our judges. That’s what the public is starting to understand, and alarm bells are ringing for many citizens who got a peek behind the curtain this week.

It does not matter who the judicial candidates are, or even who the legislative leaders are. Their personal integrity isn’t the issue. The issue is a process that lends itself to corruption and mistrust on the part of citizens. No one is suggesting the judges themselves are corrupt, but the process by which they are chosen is certainly open to corruption more than any other. There should be as little opportunity as possible for even the hint of impropriety in the judicial selection process. The governor should appoint judges, with advice and consent of the Senate – as the nation’s founders framed the U.S. Constitution. Separation of powers is the best defense against tyranny and corruption, and it’s the only way to restore trust in the integrity of South Carolina’s government.