South Carolina Supreme Court Selection

South Carolina is one of only two states (along with Virginia) in which the legislature selects the supreme court.  In contrast to South Carolina, judges in many states (like federal judges) are appointed in a process that requires the consent of both the other two branches: legislative and executive.  Separation of powers.

Selection of a state Supreme Court justice by the SC General Assembly (legislature) begins with the state constitution which provides that "the General Assembly by law shall establish a Judicial Merit Selection Commission to consider the qualifications and fitness of candidates for all judicial positions on these courts and on other courts of this State which are filled by election of the General Assembly. The General Assembly must elect the judges and justices from among the nominees of the commission to fill a vacancy on these courts. No person may be elected to these judicial positions unless he or she has been found qualified by the commission...."

Now three candidates have cleared screening by the Judicial Standards Commission and are campaigning among legislators. As The State reports, "The election is on Feb. 3 at noon, when the 169 senators and representatives will gather in the House of Representatives. A winning candidate must have 85 votes – one-half of the 169 senators and representatives plus one – to win. A senator’s vote counts as much as a representative’s."

Read more here: http://www.thestate.com/news/local/article56203735.html#storylink=cpy

More on South Carolina judicial selection here.

Partisan Battle to Appoint to Virginia Supreme Court

Virginia is one of only two states in which the legislature selects the supreme court. As noted earlier,   A Democratic governor recently filled a vacancy with someone (Justice Jane Marum Roush) the Republican legislature recently chose to replace.As the Richmond Times reports, "If the legislature remains in session, Roush would have to leave the court 30 days from Monday without legislative endorsement. If it remains adjourned, McAuliffe could appoint her to another interim term that would last until 30 days following the next session of the General Assembly.

Virginia Supreme Court Selection

Virginia is one of only two states in which the legislature selects the state's highest court. As the Washington Post explains, "Judicial appointments generally are left to the legislature. But when it’s not in session, the governor may fill a vacancy." A Democratic governor filled a vacancy with someone the Republican legislature recently chose to replace.

Change to Virginia Judicial Selection?

Virginia one of only two states in which legislature selects top judges

Virginia and South Carolina are the only two states in which the legislature alone selects the state's highest court.  In about a dozen states the legislature, or one of house of it, shares the power to select the supreme court, with the governor and perhaps a nominating commission having some power as well.

This piece from the Virginian Pilot argues that Virginia's system "means judicial appointments can become patronage positions. Petty political disputes result in appointment holdups that burden the system. Qualified candidates face battles over issues irrelevant to their ability to serve."

The Pilot's editorial concludes "More than 30 other states have instituted hybrid systems in which a commission vets judicial candidates and then makes recommendations to the governor for appointment. Virginia should consider something similar."  The descriptive problem with this statement is that it overstates the number of states and the normative problem with this statement is that it lumps together states in with and without senate confirmation and states with and without special powers for the bar. 
 

British Perspective on Political Accountability of Judges

"Is There a Case for Greater Legislative Involvement in the Judicial Appointments Process?"

The Study of Parliament Group Paper No. 3, London by Alexander Horne.

It's abstract says "the UK’s top court is more frequently determining essentially socio-political questions. In the light of this expanding judicial role, this paper asks whether new mechanisms for increasing political accountability, such as a parliamentary confirmation procedure, are needed for appointment to the most senior judicial offices (including, but not limited to, the UK Supreme Court)."

"The research examines whether new methods of accountability could be introduced in the UK without impacting on judicial independence."

Legislature Electing Chief Justice of South Carolina

South Carolina is one of only two states in which the legislature selects the supreme court.  Initial selection of judges this way is one thing, but judicial retention for another term is another.  In SC a sitting chief justice is seeking another term by campaigning within the legislature.  Her opponent: another sitting justice on the court.  More on South Carolina judicial selection here.

Call for South Carolina to Changes its Method of Judicial Selection

South Carolina judicial selection.

A South Carolina news organization, the Hilton Head Island Packet, points out that South Carolina is one of only two states (Virginia is the other) in which the legislature appoints all judges from the state supreme court on down.   "And the state's Judicial Merit Selection Commission, whose 10 members nominate judges, is composed of six lawmakers.  As if that isn't legislator overkill, three of the state's top lawmakers appoint the 10 members on the commission. The result: By the time a state judge ascends the bench in South Carolina, they're beholden to lawmakers in ways that do not serve the public and work directly against the notion of judicial independence."  In contrast to South Carolina, judges in many states (like federal judges) are appointed in a process that requires the consent of both the other two branches: legislative and executive.  Separation of powers. 

The Island Packet argues "South Carolina could consider a merit-based system, similar to Florida's For appellate judge appointments, the governor chooses from a list recommended by the Judicial Nominating Commission (whose members are not selected by the legislature).  When the justices' terms expire, their names appear on the general election ballot for a merit retention vote. If a majority of voters do not support retaining a judge, the governor appoints a replacement who has been screened by the commission."  I point out the problems with this system here and here.

The Island Packet continues: "While some states employ a direct popular election, this too is problematic, as lawyers who appear before them are apt to be large campaign donors. Turning judges into politicians is not the fix.  Another possibility: Model the state's system after the federal one. The governor would nominate, and legislators would advise and consent. At the very least, no judge would be beholden to just one governmental branch."  I agree.

Read more here: http://www.islandpacket.com/2013/12/02/2825881/sc-should-check-how-judges-are.html#storylink=cpy

Read more here: http://www.islandpacket.com/2013/12/02/2825881/sc-should-check-how-judges-are.html#storylink=cpy