If you’ve followed the judicial reform discussion for much time, you’ve probably heard that South Carolina is one of two states where judges are legislatively elected, the other being Virginia. But a review by SCPC found large differences between the two when it comes to policy and procedure. In a few key areas, South Carolina should be taking tips from its northern neighbor (until our system can be completely overhauled).
By comparison, we provide less transparency as judges are being screened, give a handful of lawmakers too much power over nominations, and have uneven election rules. South Carolina already lags behind neighboring states when it comes to taxes and education; we shouldn't let ourselves be outdone when it comes to picking judges.
The good news is that these issues can be fixed with a few tweaks to the law, and that judicial reform is gaining steam. Below are key differences between South Carolina and Virginia when it comes to selecting judges, highlighting where we fall behind.
Screening and nominating candidates
Before a judicial candidate can be elected in South Carolina, he or she must be screened and nominated by a 10-member body called the Judicial Merit Selection Commission (JMSC). The commission is appointed by just three state legislators (five by the House speaker; three by the Senate Judiciary Committee chairman; and two by the Senate president.) Six of the commission’s 10 members are legislators.
State law prevents the JMSC from nominating more than three candidates per open seat – which SCPC has cited as a major issue. Why? Let’s assume that five candidates are found qualified for an open seat. In this scenario, the JMSC decides who to advance, and it does not have to explain or justify its selections.
It is common for candidates found qualified to be denied a chance at election because of this cap. In the latest published JMSC report to legislators, four judicial candidates were found qualified but not nominated, including a candidate for the S.C. Supreme Court.
South Carolina is the only state in the nation where judges are nominated by a legislatively controlled commission and subsequently elected by the Legislature.
When a judicial vacancy occurs, House and Senate legislative committees begin taking nominations from “General Assembly members,” according to this process guide. Our research found that candidates are typically recommended by local legislative delegations, meaning the lawmakers representing a candidate's area of jurisdiction.
It is common for local bar associations to first evaluate candidates and recommend names to the local delegations. Some delegations also rely on screening committees comprised of citizens, attorneys and local officials.
Nominees are then reviewed by House and Senate legislative committees (the Courts Committees) to determine whether they are qualified for office. Unlike in South Carolina, there is no statutory limit on the number of candidates per seat that can be advanced for election.
Verdict: Both states give lawmakers too much power when it comes to screening and nominating candidates. More executive input would help to balance this out. However, we believe South Carolina fares slightly worse because it vests nominating power with a single entity (the JMSC), while in Virginia it is spread among legislative delegations.
The South Carolina House and Senate meet in a joint session to elect high-level judges, which at first doesn’t seem like much of an issue. What is a problem, however, is that candidates only need a majority of votes from the joint group of lawmakers voting that day.
Because the House far outnumbers the Senate (124-46), it has much more voting power than the upper chamber. In fact, it is possible for House members to elect a judge without a single vote from the other side.
This is a serious procedural failure. It also makes little sense when you consider how things normally get done in the Legislature. Bills are not passed by one chamber, and vetoes can’t be overridden without a supermajority from both sides. Why, then, do we allow judges to be picked in this lopsided manner?
We aren’t the only ones who think this is a problem. This session, at least two bills (S.130 & S.482) filed by senators would require judges to get a majority of votes from both chambers to be elected. We strongly encourage lawmakers to adopt this common-sense change.
The Virginia state Constitution requires judges to be elected by a majority vote of each chamber. The House and Senate vote separately. A candidate that is unable to secure a majority from both chambers is not elected.
Verdict: Virginia takes the edge over South Carolina because it requires the consent of both chambers to elect judges.
Transparency and public participation
South Carolina state government is becoming more transparent, and many legislative committee hearings are broadcast live; however, citizens face a near blackout when it comes to the selection of judges.
Candidate screenings held by the JMSC are not livestreamed. And while technically open to the public, these meetings only happen in Columbia, often during weekday mornings and afternoons, making attendance unlikely for those living in other areas of the state.
One of the biggest benefits of livestreaming is that the video can be saved and posted online for later viewing. These clips can be watched at any time and are a great way to quickly find out what happened at a meeting. No livestream means no digital record for citizens.
A person wishing to speak at a judicial hearing should start planning early, since South Carolina law requires speakers to submit their written testimony at least two weeks in advance. All documents submitted to the JMSC must be done so under oath, and it reserves the right to reject testimony.
Judicial hearings are regularly livestreamed in Virginia, along with other House and Senate committee meetings, based on our review of its legislative websites. The most recent judicial hearings were livestreamed on February 21 of this year (see “Courts of Justice”).
The hearings typically involve introductory remarks by candidates, followed by questions from legislators about their backgrounds and experience. The videos, while not exactly the most entertaining, do provide Virginians with an important look at how their judges are selected.
Members of the public are able to speak at hearings with little issue. We found no law that requires speakers to provide the committees with advanced notice. However, a legislative staffer told SCPC it is common for citizens to inform the committee clerk if they wish to speak, which lets the committees set aside necessary time.
Verdict: Virginia provides more transparency because its judicial hearings are livestreamed, and the videos are posted online for later viewing. It is also easier for citizens to speak at meetings because there is no statutory notice requirement.
The S.C. Policy Council contends the federal model of selecting judges would provide the most balance and accountability for South Carolina (allowing the governor to appoint judges with Senate or full General Assembly confirmation). However, we recognize that such a change requires amending the state Constitution, which could take several years, if not longer. In the short term, we support process changes to improve the selection process and begin restoring public trust in our courts. (Learn more about our recommended judicial reforms here.)