South Carolina’s judicial selection process is unusual and rife with issues that must quickly be addressed. Not only are higher-level state judges elected by the Legislature (a method used in just two states), but candidates for these seats must also be screened and nominated by a small legislatively controlled board. It’s a process tightly controlled from beginning to end by the legislative branch, with no input from the governor and little opportunity for public engagement.
There are major issues at the local level as well. Magistrate judges, who preside over low-level cases affecting everyday citizens, are effectively hired by small groups of state senators (sometimes just one or two of them). At the moment, nothing prevents these senators, many of whom are attorneys, from practicing law in front of a magistrate they helped to the bench. Plus, a defect in the law allows magistrates to serve for years beyond their intended four-year terms.
Here are seven ways South Carolina can drastically improve its judicial selection process. These do not require amending the state Constitution and can be achieved in the near future.
1) OVERHAUL THE JUDICIAL MERIT SELECTION COMMISSION
The 10-member Judicial Merit Selection Commission (JMSC), which must screen and nominate a judicial candidate before he or she can be elected by the General Assembly, is appointed by just three legislators. Five members are selected by the House speaker; three are selected by the Senate Judiciary Committee chairman; and two are selected by the Senate president. Six of the commission’s ten members are legislators.
Since the Legislature elects judges, it should not be the case that lawmakers also control the screening and nominating process. This is too much power for a single branch of government to have over another. In fact, the American Bar Association has said the JMSC does not meet its standards because the commission is legislatively controlled.
Solution: The governor should appoint a majority, if not all, of the JMSC’s members; and most commissioners should be members of the public. Additionally, lawyer-legislators should be prohibited from serving on the commission to mitigate conflicts of interest.
In addition to balancing out the selection process, this change would introduce a central executive – the governor – into the equation, who would be accountable to all South Carolina voters for his appointments. Bills that would address this include S.178 and H.3022 (though under H.3022, the governor would not have true appointment power since nominees would be selected by legislative delegations.
2) REMOVE OR RAISE THE CAP ON JUDICIAL NOMINEES
State law only allows the JMSC to advance up to three candidates per vacant judicial seat, which unnecessarily limits the number of potential qualified candidates for the Legislature to consider. Even if a candidate is found “qualified,” it is possible they won’t be given a chance at election because of this cap. This scenario occurs frequently, in fact. The JMSC found 11 candidates qualified who were not nominated for election in its latest report.
Solution: The cap should be repealed, or at least raised. Doing this would allow more qualified candidates to put their hats in the ring to compete for these critical positions. Bills that would address this include S.130, S.178 and H.3447.
3) IMPROVE TRANSPARENCY SURROUNDING THE SCREENING PROCESS
The JMSC screening process suffers from a severe lack of transparency and is not friendly to public input. Meetings are rarely, if ever, livestreamed, meaning in-person attendance is generally required to know the details of what happened. This is unrealistic for many people who live outside of Columbia. Moreover, a person who wishes to speak at a meeting must submit their written testimony at least two weeks in advance to the commission.
Solution: All JMSC hearings should be livestreamed to the public, which would be required under H.3932. Additionally, the two-week testimony submission requirement should be reduced or removed.
4) REQUIRE A MAJORITY OF BOTH CHAMBERS TO ELECT JUDGES
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, 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.
5) REFORM THE MAGISTRATE SELECTION PROCESS
While magistrate judges are technically appointed by the governor with Senate confirmation, the actual process looks much different and is deeply problematic. In practice, the governor can only nominate someone who is first recommended to him by the candidate’s Senate delegation (meaning the state senator(s) representing the county where the magistrate will serve). This rule effectively gives control over magistrate selection to a handful of local senators, sometimes just one or two of them.
Solution: Ideally, Senate delegations should be removed from the selection process so that the governor can properly appoint magistrates with Senate confirmation without interference. While no bill this year has been filed to do this, one bill (H.3535) would at least require a Senate delegation to provide the governor with two candidates for his selection.
6) CLOSE THE MAGISTRATE HOLDOVER LOOPHOLE
While magistrates are only supposed to serve four-year terms, a loophole in the law has allowed many to stay on the bench for years beyond this point. According to state law, a magistrate serves for four years and until a successor is appointed. If a replacement is never appointed, that magistrate will serve on holdover status indefinitely. In a most extreme case, The Nerve reported in 2021 how one magistrate judge had been in holdover status for almost two decades.
Solution: S.155 would allow a magistrate to serve in holdover status no longer than 14 days, after which the governor could make a temporary appointment until the Senate can give advice and consent for a permanent appointment.
7) REQUIRING JUDGES TO HAVE A LAW DEGREE
In South Carolina, there are three types of judges – magistrate judges, probate judges and municipal judges – that can take the bench without obtaining a law degree. While there are certain eligibility and education requirements for these jobs, these are not sufficient substitutes for completing law school, which is required of their judicial peers and the attorneys in their courtrooms.
Solution: Under ideal circumstances, all South Carolina judges should have a law degree before taking the bench. The law can be very complicated, and those who make legal judgements should have a professional legal education. However, should South Carolina continue to let judges who are not lawyers serve on the bench, we should consider limiting the authority of non-lawyer judges and delegating higher-level responsibilities to judges with a proper law degree.