More blacks on the bench

(Published April 23‚ 2004)

Perhaps South Carolina's method of selecting judges could be improved to encourage more black judges and less partisanship. But we don't believe that popular election of judges is the answer.

In recent weeks, critics have taken issue with the fact that the number of African-American judges is not reflective of the black population in the state. While 30 percent of South Carolinians are black, only 7 percent of the judges elected by the General Assembly are black.

Civil rights activist Jesse Jackson has called for the popular election of judges, which, he believes, would help ensure that blacks are better represented on the bench. But that, we think, would be trading a fairly efficient system of legislative election of judges for a deeply flawed one.

Currently in South Carolina, judges are elected by the Legislature, but not until they are vetted by the state Bar Association and the Judicial Merit Selection Committee, which nominates candidates. After receiving recommendations from the Bar, the committee nominates a maximum of three candidates for each post. The candidates then are forwarded to the General Assembly, whose members make the final selection.

Some contend, however, that the Legislature, particularly members of the dominant party, maintain too much control over the process. The selection committee is made up of 10 members chosen by House and Senate leaders. Six of the 10 members are state lawmakers, and the other four are appointed by legislators. Of the lawmakers, four are members of the majority Republican Party and two are Democrats.

One proposed reform would be to allow the committee to forward the names of more than three candidates for any given seat. A bill recently was passed in the House and moved on to the Senate that would eliminate the three-person cap.

Another proposal, one favored by the Bar Association and the American Judicature Society, calls for non-partisan judicial merit selection nominations. A slate of candidates would be screened and approved according to Bar Association standards and then forwarded for appointment by the governor.

While these reforms merit debate, we think the proposal to move to popular elections judges is unwise. The potential for the election of unqualified candidates is too great in such a system.

In the current system, the slate of candidates at least is screened by experts. In a popular election, the public would have little way of gauging the qualifications of candidates for the bench. In states such as Florida, where judges are elected by the populace, campaigns seldom shed much light because candidates are restrained by professional ethics from taking positions that might later call their impartiality into question. Moreover, judges beholden to campaign contributors easily can find themselves in at least the appearance of a conflict of interest when a supporter appears before the bench.

We agree that South Carolina ought to strive for a more racially diverse bench. In fact, state law recommends that the selection committee consider race, gender, national origin and other demographic factors to "ensure nondiscrimination."

Nevertheless, the first goal should be to widen the pool of black law students, so that South Carolina will have more black lawyers, who would comprise a group from which more black judges may be chosen.

Granted the system needs improving, but we should acknowledge that the Palmetto State has produced some respected black judges, including Ernest Finney, an African-American who served on the state Supreme Court from 1985 until he retired in 2000 -- his last six years as chief justice.

The system may be in need of improvement, but it shouldn't be scrapped for an inferior one.

Don't replace the current system with a system where judges are chosen in a popular election.

Copyright © 2004 The Herald, South Carolina