The Palmetto Insider

The blog of the South Carolina Policy Council

Judicial Independence Threatened by Legislative Activism

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In South Carolina, the Senate and the House of Representatives are charged with electing justices to the Supreme Court, the Court of Appeals, the Circuit Court, and the Family Court. The only judicial appointments made by the governor are Masters-in-Equity and Magistrates, and those appointments require the advice and consent of the General Assembly. South Carolina is the only state in the nation that grants this much control over the judicial branch to its Legislature.

All candidates for the bench must be found qualified by the Judicial Merit Selection Commission, which is also controlled by legislators. The Commission may also determine that a judge is no longer qualified to serve when his or her term expires.

The Judicial Merit Selection Commission has 10 members. The Speaker of the House appoints five: three must be members of the General Assembly; two must be members of the general public. (Currently, House Speaker Bobby Harrell’s brother serves on the Commission.)

The chairman of the Senate Judiciary Committee appoints three members; and the President Pro Tempore of the Senate appoints two. Of these appointments, three must be serving members of the General Assembly, and two must be selected from the general public. Senate President Pro Tempore Glenn McConnell actually nominated himself to serve on the Commission.

Judicial Merit Selection Commission Members

  • Senator Glenn F. McConnell 
  • Senator John M. “Jake” Knotts, Jr.    
  • Senator Floyd Nicholson       
  • Representative F.G. Delleney, Jr.
  • Representative Alan D. Clemmons
  • Representative David J. Mack, III
  • Professor Emeritus John P. Freeman
  • Amy Johnson McLester
  • H. Donald Sellers, Esq.
  • John Davis Harrell, Esq.

The American Judicature Society, an organization dedicated to maintaining public trust and confidence in the court system through an independent judiciary, provides a detailed description of the court system in South Carolina. A number of states have adopted a merit review process to select judges, but the American Judicature Society does not include South Carolina’s Judicial Merit Selection Commission among them because it is controlled by legislators.

College of Charleston School of Law professor John L. S. Simpkins likewise expressed concerns about the Legislature’s influence over the judicial branch in his examination of the constitutionality of roll call voting legislation:

“The General Assembly enjoys a broad scope of authority in exercising its constitutional powers. This grant of authority has been characterized by an extreme degree of judicial deference to the legislative branch in the pursuit of legislative prerogatives.”

Much of that influence is concentrated within the Judicial Merit Selection Commission itself. A 2009 report in The State about a decision by the Commission to remove a family court judge raised questions about the Commission’s ability to influence controversial cases:

“If somebody doesn’t stop it, it’s going to repeat itself in the next year and the next year and the next year,” (Clary and Greenwood lawyer C. Rauch) Wise said. “And it’s going to get worse to the point where a judge on any semi-controversial case will think, ‘What will the Legislature think if I rule this way?’”

In March, the state Supreme Court upheld the Commission’s decision to remove the judge from the bench, a decision described by the American Bar Association Journal as “a tragic day for the independence of the judiciary.”

It is precisely for these reasons that those who interpret the laws—the judicial branch—should not be influenced by those who write the laws—the Legislature. An essential part of reforming government in South Carolina must be to end the General Assembly’s control over our courts.

To learn more about how legislative reform in South Carolina, see our new report.

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Written by Robert Appel

September 9, 2010 at 3:00 am

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