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A bedrock of the American political system is the separation of powers into the three branches of government. Recognizing the corrupting influence unchecked power can have on human nature, the American founders attempted to create a system of government where no one branch of government would be able to dominate the others. This is why presidents can veto legislation, the legislature can override vetoes, and foreign treaties are approved by the Senate, among other examples. But the true genius of our Constitution is not just in separating powers, but in its recognition that the people are the actual source of all government power and can directly or indirectly hold government accountable.
This includes even the federal judiciary. While we do not elect the Supreme Court, we do elect the President who nominates them and the Senators who confirm the Justices. And this method for selecting judges, carefully designed by our founders, is emulated by many states around the country for filling their own judicial vacancies — giving citizens an opportunity to shape the federal judiciary through their votes.
South Carolina has a unique method of selecting its judges, however, one that leaves most of its citizens with little voice in the makeup of its judiciary. The unelected South Carolina Judicial Merit Selection Commission (JMSC) chooses a slate of three candidates for a judicial opening for the legislature to consider. It doesn’t have to explain its choices and the peoples’ representatives in the legislature may only choose one of the JMSC’s hand picked candidates. The Governor, elected by the whole state, has no say whatsoever.
More troubling still, the South Carolina Policy Council has noted that in 2022 there was not a single contested judicial seat, as the nature of the process leads to candidates dropping out before the legislature votes. As a result, the people’s elected representatives had only one candidate, chosen by an unelected commission, for every seat. Hardly democracy in action.
But South Carolina’s system is even worse when you consider that that nine of the ten current members of the JMSC are attorneys. In practice, many of those seats end up restricted to attorneys, as the state bar dominates the JMSC and thus the selection of South Carolina judges. Attorneys no doubt have a great interest in who sits on the courts they will practice in – but so do the rest of South Carolinians whose liberty and livelihoods are in those judges’ hands.
So how did South Carolina end up with this strange and undemocratic system for choosing its judges? As the name of the Judicial Merit Selection System implies, the idea is that members of the judiciary would be chosen based on merit – and only a select few hand-picked lawyers, not the people of South Carolina or their elected representatives – should be trusted with identifying who merits selection as a judge.
But it turns out there is no evidence that such a system actually produces better judges. As Professor Brian Fitzpatrick of Vanderbilt University Law School has argued conclusively with multiple studies, “there is no evidence that any method of selection produces more competent judges than any other. This surprises people, it surprises me, but scholars have looked at it every way we know how - years of experience, ranking of law school, productivity, citation of opinions in other jurisdictions, clarity of opinions - and there is no good evidence one system produces better judges than any other.”
However, Fitzpatrick’s work has found that attempts at so-called “merit-based” selection processes do succeed at one thing, and that is selecting judges who are more left-leaning and progressive than the respective state’s population at large. Since it’s typically lawyers, not the population at large, selecting them, this should not be all that surprising that the judges they choose better match the legal philosophy of the small group of lawyers who pick them and not the people of the state.
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Given such a convoluted and undemocratic system, it is not surprising that there is an increasing demand for reforming South Carolina’s judicial selection process to restore democratic accountability and allow more than a handful of state legislators and the state bar to have a voice.
Options for reform are plentiful. South Carolina could simply follow James Madison’s lead and adopt the federal system, giving the governor the responsibility to choose judicial nominees that must be confirmed by the state legislature. Or it could do what 22 of its sister states do and allow the people to elect their judges. Either option would give all South Carolinians - not just a handful of lawyers and state legislators - the ability to shape the judicial branch of state government directly or indirectly. But even more limited options, like adding seats to the JMSC selected by the Governor or the people themselves, or requiring the JMSC to forward all candidates to the full legislature to consider, or giving the Governor responsibility for identifying the candidates the JMSC are to review would be substantial reforms that would make South Carolina judicial selection more accountable to the people the judiciary serves.
A bipartisan movement from across South Carolina, including Attorney General Alan Wilson, the South Carolina Policy Council, several state legislators, and sheriffs and solicitors across the state have recently called for reform. American for Prosperity-South Carolina adds its voice to this chorus. Let’s get this done.
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ABOUT THE AUTHORS ...
Candace Carroll is state director at Americans for Prosperity-South Carolina. Casey Mattox is senior vice president for Legal and Judicial Strategy at Americans for Prosperity.
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