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Time to get politics out of process to select judges

Lawmakers need to greatly reduce role to restore credibility

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South Carolina lawmakers are fooling themselves if they think raising the cap on the number of judicial candidates nominated will eliminate favoritism.

The problem with the way judges are selected in this state lies with the lawmakers. We have a system that is every bit as political as any partisan election for judge in Texas.

Yes, we made some progress in 1996 when voters approved a constitutional amendment to set up the Judicial Merit Selection Commission. The commission considers the qualifications and fitness of candidates for all state judgeships. The law also sets up a system of citizens advisory committees to help with the process. And the South Carolina Bar helps assess candidates. Up to three names are sent to the full General Assembly for a vote.

In years past, judges came straight out of the legislature for the most part. Now legislators have to wait a year after leaving the Statehouse to apply to be judge.

The Statehouse is where the problem lies. It is raw politics once the process reaches the General Assembly. 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 the votes.

And legislators dominate the selection commission. The Speaker of the House and the chairman of Senate Judiciary Committee each appoint five people to the 10-member commission. Six are from the General Assembly. Four are from the general public. The system also greatly favors the House, with its 124 votes versus the Senate's 46 votes.

We need to do better.

How judges are selected in this country varies greatly from state to state. In Georgia, they are elected in nonpartisan elections, but mid-term vacancies are filled through gubernatorial appointment, according to the American Judicature Society. Since 1972, Georgia governors have established by executive order judicial nominating commissions to recommend candidates to fill the vacancies. The vast majority of Georgia judges are initially appointed to the bench and compete in contested elections to retain their seats.

In Florida, appellate judges are chosen through a merit selection and retention process, and trial judges are chosen in nonpartisan elections. In North Carolina, partisan elections for judges were established in 1868, but in recent years, the state has moved to nonpartisan elections -- for superior court judges in 1996, for district court judges in 2001 and for appellate court judges in 2002.

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. But it also recognizes that states might not be able to abandon election processes altogether.

If states must use some reselection process, the report states, then it should be done by the same type of neutral deliberative body.

The report also lays out some "enduring principles":

• Judges should uphold the law.

• Judges should be independent.

• Judges should be impartial.

• Judges and the judiciary should have the confidence of the public.

That last principle is most at risk under a system weighted down by politics and one that relies more on calling in political favors than it does on determining who is best qualified for the job. How can we have confidence if the selection process raises questions about a judge's independence and impartiality?

Under our present system, we can end up with very good judges, and the screening process has helped to make that much more likely. But there are no guarantees. How much better it would be if we could get closer to that ideal of the most qualified person being seated on the bench. To do that, we need to greatly reduce, if not eliminate, the role of lawmakers. This will be tough to do because it requires lawmakers to give up power.

But the role of judge is much too important a job to allow it to be blown about by political winds.