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Court ruling shows politics overriding in judge selection

State should move to neutral, independent process

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If there were any doubts that South Carolina's method for selecting judges was pure politics, the state Supreme Court's ruling in a lawsuit brought over the selection of Carmen Tevis Mullen for a 14th Judicial Circuit judgeship answered them.

The high court ruled that the question raised about how the Judicial Merit Selection Commission did its job was a political one and not a matter for the courts.

"The state constitution, in unequivocal terms, vests the power to determine the qualifications for judicial candidates in the General Assembly," the ruling states. "Were we to review this case, this court would be delving into the decision-making process of the very body that determines whether the members of this court are qualified to seek election to the bench."

The lawsuit filed by local attorney Jim Herring and the South Carolina Public Interest Foundation alleged that the Merit Selection Commission neglected to do a thorough job of screening attorney Mullen, whom the General Assembly elected in February for a seat on the 14th Judicial Circuit bench.

The suit states that the commission ignored concerns about her residency and where her practice was focused, despite those concerns being raised by a citizens committee that also reviews candidates. Judge candidates are required to live in the circuit in which they are seeking a judgeship.

The Supreme Court ruling points out that the court does in certain circumstances review the actions of the General Assembly when those actions might be unconstitutional. State law also specifically gives the court power to review decisions of administrative agencies under the umbrella of the executive branch. And the court ruling states that Herring and the foundation could challenge Mullen's qualifications as an elector from the judicial circuit under state law on voter registration.

But what remains unclear from the ruling is exactly what kind of oversight exists for the Judicial Merit Selection Commission, or how a party could bring a grievance against the body.

That leaves us with a screening committee with six of its 10 members from the Statehouse, with no independent review of their actions and a lot of leeway, including subpoena power, in how it conducts its work.

Unfortunately, it is the General Assembly where the problem lies. It is raw politics once the judge selection process reaches the Statehouse. In theory, candidates for a judgeship can't start lobbying until their names are sent up by the commission. But the vote gathering starts long before that. Those with the backing of a powerful legislator can expect to pull in votes.

And with a majority of selection commission members coming from the General Assembly, it's impossible to be sure politics isn't part of the qualifying process, too.

During oral arguments, Chief Justice Jean Toal asked the commission's lawyers if there were any limitations on the body's discretion. She asked what would happen if a certain political faction, such as a group of Democrats, took control of the Merit Selection Commission and decided to nominate only Democratic judges.

Attorney Michael Hitchcock responded that such a situation might constitute arbitrary or capricious behavior that could be subject to judicial oversight, but he said that was not the case with Mullen's nomination.

Given the leeway granted to the commission under state law, it's hard to see what would be considered "arbitrary" or "capricious" and who would make that call.

Does one appeal to the commission, which made the decision, or to the General Assembly whose members represent a majority on the commission?

We need to get politics out of judicial selection. The American Bar Association, in its report "Justice in Jeopardy," calls for states to establish neutral, diverse, nonpartisan bodies to assess and appoint judicial candidates. The report recommends appointment of judges for a single, lengthy term, or until a specified age.

Judicial independence and impartiality are critical to maintaining the public's confidence in the court system. South Carolina's system misses that mark.