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Chapter 6 - Judicious Election of Judges
Judicial Selection: An Overview
There is a great deal of variation among the states in the methodology of selecting judges.  The following is a breakdown of the different judicial selection methodologies: twelve states select judges through nonpartisan elections; eight states select judges by partisan elections; fifteen states select judges by way of a nominating commission; nine states select judges by some form of merit selection and other methods; four states select judges by gubernatorial appointment; and, only two states - Virginia and South Carolina - select judges by legislative appointment.  What makes South Carolina truly unique is the fact that a judicial candidate must first be nominated by the Judicial Merit Selection Commission before an appointment is made by the legislature. 
 
While partisan and nonpartisan selection is appealing for its democratic value, it does not necessarily ensure that candidates are the most qualified to serve as a judge.  At the other end of the spectrum are nominating commissions and merit selection. While such methods may yield very qualified judges, the citizens of the state have little input.  South Carolina’s methodology combines the two methodologies - limiting candidates to those who are qualified and providing for ultimate selection by elected representatives.

The Judicial Merit Selection Commission: Composition of Membership and Mission
The Judicial Merit Selection Commission (“Commission”) consists of ten members. Six of those members are also current Members of the General Assembly - three Senators and three Representatives.  In addition, the Commission also has four non-legislative members.  The purpose of the Commission is to screen candidates for judicial office and report its findings to the General Assembly. 
 
The Judicial Merit Selection Commission is also concerned that since the decisions of our judiciary play such an important role in people’s personal and professional lives that all South Carolinians should have a voice in the selection of those judges.  It is this desire for broad-based grassroots participation that has led to the statutory creation (§ 2-19-120) of the Citizens Committees on Judicial Qualifications (“Committees”).  These Committees, composed of people from across the societal spectrum, are asked to report to the Commission on the judicial candidates in their region.  The reports are based upon interviews conducted by Committee members with people who know the judicial candidates personally and professionally.  The Committees’ input guides the Commission’s investigation of judicial candidates. 
 
While the law provides that the Commission is to make findings as to qualifications, the Commission views its role as also including an obligation to consider candidates in the context of the judiciary on which, if elected, they will serve and, to some degree, govern.  To that end, the Commission inquires as to the quality of justice delivered in the courtrooms of South Carolina and seeks to impart, through its questioning, the view of the public it represents as to matters of judicial temperament, concern for an informed bench, and the absoluteness of the Judicial Canons as to recusal for conflict of interest, prohibition of ex parte communication, and the disallowance of the acceptance of gifts.  The commission also seeks to impart its view that good temperament is an essential quality of a judge.  
 
The Investigation and Nomination of a Judicial Candidate
When the Commission receives notice that an individual intends to seek election or reelection as a judge, the Commission conducts a thorough investigation of the candidate.  The Commission’s investigation focuses on the evaluative criteria provided by law which include: 

        1.  Integrity and impartiality; 
        2.  Legal knowledge and ability; 
        3.  Professional experience; 
        4.  Judicial temperament; 
        5.  Diligence and industry; 
        6.  Mental and physical capabilities; 
        7.  Financial responsibility; 
        8.  Public service; and 
        9.  Ethics. 
 
Only candidates found qualified by the Commission can be nominated for judicial office.  The Commission compiles the information received on each candidate and submits a Draft Report on Judicial Qualifications to the General Assembly. Forty-eight hours after the Draft Report is issued, it becomes final and candidates can then seek support of General Assembly members. The Senate and the House of Representatives elect justices to serve on the Supreme Court, and judges to the Court of Appeals, to the Administrative Law Judge Division, to the Circuit Court, and to the Family Court.  Legislative delegations confirm the gubernatorial appointments of Masters-in-Equity.  

South Carolina Courts and the Selection of Judges 
The following is a list of the various types of courts in South Carolina and a description of how judges are selected to serve on each type of court:
 
Supreme Court
According to Article V, Section 3 of the S.C. Constitution, the members of the South Carolina Supreme Court must be elected by a joint public vote of the General Assembly. In any contested election, the vote of each Member of the General Assembly present and voting must be recorded. According to Article V, Section 27 of the S.C. Constitution, candidates for the Supreme Court must first be screened and found qualified by the Judicial Merit Selection Commission prior to being presented for election by the General Assembly. The five justices are arranged and elected by seat. Candidates can be from any geographical region in the State.
 
Court of Appeals
According to Article V, Section 8 of the S.C. Constitution, the members of the South Carolina Court of Appeals shall be elected by a joint public vote of the General Assembly. In any contested election, the vote of each Member of the General Assembly present and voting must be recorded. According to Article V, Section 27 of the S.C. Constitution, candidates for the Court of Appeals must first be screened and found qualified by the Judicial Merit Selection Commission prior to being presented for election by the General Assembly. The nine judges of the Court of Appeals are arranged and elected by seat. Candidates can be from any geographical region in the State.
 
Circuit Court
According to Article V, Section 13 of the S.C. Constitution, the General Assembly must divide the State into judicial circuits. For each circuit, judges must be elected by a joint public vote of the General Assembly. According to Article V, Section 27 of the S.C. Constitution, candidates for Circuit Court judge must first be screened and found qualified by the Judicial Merit Selection Commission prior to being presented for election by the General Assembly.   There are sixteen judicial circuits. 
 
Family Court
According to § 2-19-80 of the S.C. Code of Laws, Family Court judges are elected by a joint public vote of the General Assembly. Additionally, candidates for the Family Court must first be screened and found qualified by the Judicial Merit Selection Commission prior to being presented for election by the General Assembly. The required number of family judges and resident family judges in each of the sixteen circuits differs. These requirements are outlined in § 20-7-1410. Currently there are 64 Family Court judges.
 
Administrative Law Division
According to §1-23-500, the South Carolina Administrative Law Court (ALC) is an agency of the executive branch of the South Carolina government. The ALC consists of six administrative law judges. According to §1-23-510(a) of the S.C. Code of Laws, the judges of the ALC must be elected by the General Assembly in joint session. According to §1-23-510(c), candidates for the Administrative Law Court must be screened and found qualified by the Judicial Merit Selection Commission prior to being presented for election by the General Assembly. Administrative Law Judges are arranged and elected according to seat. Candidates can be from any geographical region in the State.
 
Master-in-Equity
According to §14-11-20, Masters-in-Equity must be appointed by the Governor with the advice and consent of the General Assembly. According to §2-19-110, upon a vacancy in the office of Master in Equity, candidates must submit an application to the Judicial Merit Selection Commission.  Upon completion of reports and recommendations, the Commission shall submit such reports and recommendations on Master in Equity candidates to the appropriate county legislative delegations.  The county legislative delegations shall then submit the name of a candidate to the Governor for consideration for appointment.  However, nothing prevents the Governor from rejecting the person nominated by the delegation.  In that event, the delegation shall submit another name for consideration.  No person found not qualified by the Commission may be appointed to the office of Master in Equity.
 
Magistrates Court
According to Article V, Section 26 of the S.C. Constitution, magistrates are appointed for each county by the Governor, by and with the advice and consent of the Senate. Recommendations for magistrates are given to the Governor by the county senatorial delegation. On and after July 1, 2001, persons seeking a magistrate position must pass an eligibility test, unless exempted, and must have at least two years education beyond a high school degree. On and after July 1, 2005, persons applying to be a magistrate must have a baccalaureate degree.
 
Municipal Court 
According to §14-25-15 of the S.C. Code of Laws, the municipal council appoints each municipal judge.

Probate Court
According to §14-23-30 of the S.C. Code of Laws, Probate Court judges must be elected by the qualified electors of the respective counties for a term of four years. The election for such offices shall be held at each alternative general election, reckoning from the year 1890.

Judicial Election Controversy in South Carolina
In recent years the method that South Carolina uses to elect judges has come under fire for two reasons; 1) the number of African Americans and women elected to judicial positions has remained low compared to the percentage of African Americans and women in the state’s population; and 2) the election of judges by the General Assembly prevents the judiciary from being totally independent of the legislature. Controversy erupts each year when the judges elected by the General Assembly are primarily white and male, even though the Judicial Merit Selection Commission certifies both African Americans and women as qualified to serve as judges in the various courts of the state. Frustration over the lack of qualified African American and female candidates to the judicial positions has led to friction between members of the General Assembly, even to the point of physical confrontation.
How should the situation be handled? Should a selection process be implemented that requires the General Assembly to elect a certain percentage of African Americans and/or women as judges each year? Or, should the South Carolina constitution be amended to provide for appointment of judges by the governor with the consent of the state senate? Or should the South Carolina Constitution be amended to allow judges to be elected by the people?
Another issue that is debated in South Carolina from time to time regarding the judiciary is whether judges should be appointed for good behavior, like judges of the Federal Courts. Benjamin Tillman, the chief architect of the present South Carolina Constitution, was adamantly against the appointment of judges for good behavior (essentially life). But, if judges do not have to be concerned with reelection, whether by the General Assembly or the people, will they be more active in enforcing the laws of the state?
 
What do you think? Better yet, what do your students think?
 
 
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1Phil Lenski and Paul Horne, Jr. are the contributing editors for this chapter.