Opinion: McMaster needs equal role with Legislature in picking judges

We keep being told that the Legislature isn't going to make any major changes to the way judges are selected in South Carolina - as if that somehow makes the debate the Senate launches any less consequential.

Minor changes would be a problem if South Carolina needed a complete overhaul. We don't. We need tweaks that are frankly minuscule to all but a handful of lawyer-legislators who have positioned themselves to game our current system.

Indeed, the only people who are talking about major changes - switching to public elections or stripping the Legislature from the process - are the defenders of the present system, who harp on those ideas as scare tactics.

Yes, there would be advantages to letting the governor appoint judges, and it might be a better way to go if it didn't require amending the state Constitution, which requires far more legislative support than is likely to materialize in the foreseeable future. But there are also disadvantages beyond the political odds against it. And the main problems we need to fix - the Legislature's stranglehold on the judiciary and the ability of a handful of lawyer-legislators to use that stranglehold to intimidate judges, undermine public confidence in the judiciary and benefit their clients in the courtroom - can be fixed with the Legislature still electing judges.

As Sen. Greg Hembree, a former solicitor, told his colleagues, those fixes are needed because a public already predisposed by the national political climate to question the trustworthiness of institutions has been nudged by recent revelations into adding South Carolina's judicial selection system to its untrustworthy list.

"It is essential, it is absolutely critical to our system of government and democracy in South Carolina and America that the public have confidence in their judicial system and how that system is elected," he said. "And if we have an opportunity to build that trust, to take those steps to try to increase that confidence, it's our obligation to do it." It's a sentiment that has been echoed by legislators in both parties, Gov. Henry McMaster, Attorney General Alan Wilson, all of the state's solicitors and most sheriffs, Associate Justice John Kittredge, who is expected to take over as chief justice July 1, and more recently by retired Chief Justice Jean Toal.

The simplest fix would be to let the governor appoint the members of the Judicial Merit Selection Commission, which vets all the judicial candidates and winnows them down to no more than three nominees for each seat. That panel is currently composed of six lawyer-legislators and four non-legislators appointed by legislative leaders - even though the Legislature also elects the judges.

This system means our state really doesn't have the sort of checks and balances that the founders of this nation envisioned because one of the three branches of state government controls one of the others while the third - the one that is most directly accountable to the public - sits on the sidelines.

That simple fix has found no takers, and even Sen. Hembree's S.1046 - a modified version of which the Senate Judiciary Committee endorsed last week - gives the governor only two of the nine appointments and allows lawyer-legislators to remain on the panel, although it does allow other groups to appoint some members and sets term limits for the four legislators who would remain on the panel.

But Sen. Scott Talley outlined an intriguing plan Thursday that would provide the governor a significant role in the process, by layering a second review process atop the selection commission. Under that plan, which the Judiciary Committee attached to S.99, the selection commission would retain its role as the sole vetter of incumbents seeking reelection, but the governor would review all the other candidates and could recommend up to five of them for each position.

Those candidates would then go through the regular screening process, along with incumbents. The commission could reject some or all of the governor's choices, but it couldn't consider any candidates he didn't recommend - unless it refused to nominate any of the recommendations, in which case the process would start anew.

We're not crazy about the imprecise nature of the proposal, which allows but doesn't require the governor to appoint an advisory panel, and encourages him to consult with a list of stakeholders if he does create the panel. We also worry that a 45-day limit on the governor's review process could reduce the effectiveness of the reviews when there are a lot of candidates, which normally happens when incumbents retire.

But the proposal could work with a few tweaks, and it provides an important demonstration that there are multiple ways to accomplish what must be the goal of any reform: to give the governor a significant role in the selection of judges and to eliminate the ability of lawyer-legislators to knock incumbents and challengers out of the race - or intimidate them with the always-implicit threat of doing so.

This column was originally published by The Post and Courier on March 5.