New York is not the only state suffering though high-profile dysfunction with its judicial selection process. This week, the South Carolina legislature postponed its scheduled judicial elections, and several legislators as well as the governor called for changes to the state’s selection process.
South Carolina is one of only two states that chooses its judges by legislative election. Proponents of this approach have argued that it keeps judges more closely aligned with the values and sensibilities of the people. Opponents argue that it politicizes judicial selection (in that judicial candidates must win over legislators in order to secure their votes) and makes the judiciary subservient to the legislature. Indeed, many states moved to direct judicial elections in the nineteenth century because of concerns about legislative interference with the judicial process.
The precipitating event here was the retirement of state Supreme Court Justice Kaye Hearn, who has reached the state mandatory retirement age of 72. Justice Hearn is currently the only woman in the state’s high court. In light of her retirement, the state’s judicial nomination commission considered candidates and recommended three finalists to the legislature: one man and two women. But both women dropped out of consideration, leaving Judge Gary Hill as the sole remaining candidate.
Judge Hill may be a fine candidate, but the situation has left everyone dissatisfied. Legislators are worried about not having a real choice of candidates, as well as the practical impact of elevating Judge Hill, which would leave South Carolina with the only all-male state high court in the country.
Determining the right solution is more difficult. Some legislators would like to change the system so that they are not limited to the recommendations of the nominating commission. But this approach is ripe for abuse: if it is free to wholly ignore the commission’s recommendations, the legislature could easily appoint cronies or individuals who lack sufficient experience and competence.
Governor Henry McMaster is instead proposing that judges be appointed by the governor and confirmed by the Senate, similar to the federal process. That process, of course, is far from perfect (and often descends into pointless grandstanding). But it holds more promise for balanced and fair selection, especially if the governor would still be required to have a formal vetting process for nominees.