Reforming the Judiciary in One Short Bill

A CONSTITUTIONAL AMENDMENT TO RESTORE THE BALANCE OF POWER

The most frequent criticism made of South Carolina’s form of government – it’s also the most accurate one – is that the legislative branch dominates the other two branches. Nowhere is this more obvious than in the selection of judges: lawmakers pick them, pure and simple. The governor plays no role in the choice. Judicial candidates are screened by a legislative body called the Judicial Merit Selection Commission; candidates who make the cut are voted on by lawmakers in a simple majority-wins contest. In practice, the winner is the one on friendly terms with more lawmakers than any other candidate.

A short and simple bill introduced in February by Sen. Tom Corbin – S.386 – would give South Carolinians the opportunity to radically change that system. If passed, this constitutional amendment would abolish the Judicial Merit Selection Commission and mandate that judges – appeals court judges, circuit judges, Supreme Court justices – be appointed by the governor on advice and consent of the Senate. With a few simple changes to the constitution, this amendment would dramatically limit the legislature’s unilateral power over the judiciary. (The House, meanwhile, is considering a bill that merely tinkers with the system by neutering the Judicial Merit Selection Commission – but the legislature’s hegemony would remain unchanged.)

For years, legislators have argued that by allowing the governor to nominate judges, even if those candidates must be confirmed by the Senate, we would be placing judges at the mercy of the executive branch instead of the legislative branch. So what’s the difference? The difference – as the nation’s founders who wrote article II of the U.S. constitution understood – is that the legislature writes the laws that judges will be tasked with interpreting. Although of course judges shouldn’t be unilaterally appointed by the governor (or president), judges should have as much independence from the lawmaking body as is practically possible. In South Carolina’s system, by contrast, judges interpret laws written by the body that appointed them – making all their decisions, even good ones, prima facie suspect.

The Senate Judiciary Committee should take a close look at S.386.

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