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.
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