Editorial | Legislative selection system puts South Carolina judges in a bad spot

The following editorial appeared in The (Columbia) State on Tuesday.

If Chief Justice Jean Toal upholds an order quashing the Grand Jury investigation of House Speaker Bobby Harrell, all but the speaker’s closest friends will wonder if she was paying him back for getting her through a tough re-election challenge earlier this year from Associate Justice Costa Pleicones.

Of course, if Justice Pleicones votes to overturn the order and allow the investigation to proceed, people will wonder if he wasn’t also paying the speaker back.

The easy way to avoid this problem would be for the justices to recuse themselves from the case. That would make everyone feel much better.

And it would accomplish nothing.

While Justices Toal and Pleicones present a vivid illustration of the conflicts created by our Legislature’s stranglehold on the judiciary, they are not the only ones with conflicts. The three other justices all were elected by the Legislature, and all must go back to the State House and beg for votes once their 10-year terms end. The same is true of every judge Ms. Toal could name to sit in on the case if she and Mr. Pleicones recused themselves. Every judge in our state knows that the speaker of the House — whether it’s Mr. Harrell or someone else — can sway enough votes to unseat any judge in this state, if he sets his mind to it.

We’ve never known of a legislator with such a tremendous personal stake in a court decision, but lawyer-legislators routinely represent clients before the judges they help elect, and every judge knows that the lawyer-legislator in his courtroom will help decide whether he stays on the bench.

There is no perfect way to appoint judges. And certainly the freakish situation in which Justices Toal and Pleicones find themselves isn’t reason by itself to change how we select judges: It’s hard to imagine that the high court ever again would be asked to decide whether the attorney general will be allowed to investigate a powerful legislator within months after two justices squared off in an election.

Rather, what this situation does is serve as a dramatic reminder that our selection system does much less than it could to shield judges from the fear of losing their jobs if they make the wrong people mad. It is a fear that threatens us all, because essential to a free society is judges who rule based on the facts and the law, not what’s popular with the people who decide whether they remain judges.

The best idea anyone has come up with for ensuring that judges are selected based on their integrity and ability rather than their politics and judged on the quality of their work rather than its popularity is to have an independent merit-selection commission nominate candidates. Unfortunately, we don’t have an independent commission in South Carolina. We have a wholly dependent commission that is controlled by the Legislature. More than half the members are legislators, and half of the members are appointed by … the speaker of the House. One of them is Mr. Harrell’s brother.

Compounding the problem, our selection process involves only one of the two political branches of government.

The easiest way to improve the system is to let the governor appoint the selection commission. The better way is to let the governor appoint judges, from a list of candidates nominated by a truly independent merit commission, and subject to confirmation by the Senate. That provides some accountability, by putting the appointment power in the hands of one individual, who is responsible to the voters; allows both of the political branches to participate in the selection of the third branch, thus preserving the balance of power that is threatened when only one is involved; and interposes an insulator to ensure that political considerations can come into play only after a high bar is crossed.

It would create, in other words, pretty much the opposite of the situation we have today.