We welcome S.C. Rep. Tommy Stringer’s interest in figuring out why the state’s judicial disciplinarians can’t find any trial judges worth disciplining.
A state lawmaker is troubled by what he says is a lack of transparency in the judicial screening process. He wants a public investigation into the issue.
Mr. Stringer is asking fellow members of the House Oversight Committee to look into the S.C. Commission on Judicial Conduct. This follows an investigation earlier this year by The Post and Courier’s Joseph Cranny and ProPublica, which found that the commission hasn’t recommended public action against a single circuit judge in the past two decades, despite more than 1,000 complaints.
It’s unclear whether the Oversight Committee has jurisdiction over the court’s disciplinary body, but if nothing else, legislative interest should push the Supreme Court to act. It is simply not possible that circuit judges are so flawless that not one of them has done anything in the past 20 years that merits so much as a public reprimand.
Indeed, Columbia’s State newspaper reported just last week that one circuit judge made Facebook posts in 2016 that denounced the “liberal left,” “illegal immigrants” and the “left wing main stream media” — clearly political opinions a judge should keep to himself. While this raised questions from the Legislature’s Judicial Merit Selection Commission — and led Judge Thomas Russo to withdraw his bid for reelection — it didn’t produce any public response from the Judicial Conduct Commission.
Ethics complaints against the state’s circuit judges are buried in an opaque system that shields the accused.
Rep. Stringer’s other concern is with the Merit Selection Commission itself. And while we agree that there’s a problem with how that body reviews judicial candidates, we worry that Mr. Stringer has misidentified it.
The problem is not that the merit panel uses anonymous surveys from lawyers to help it develop questions at ask judges up for reelection, as Mr. Stringer suggests; that’s a perfectly legitimate method for identifying topics of concern.
And it’s certainly not what Mr. Stringer and several other legislators imagine: the fact that the panel nominates rather than simply screening candidates. Prohibiting the Legislature from considering anyone other than the three nominees for each seat was the linchpin of the 1996 law that reformed a judicial selection process that was based entirely on who you knew, not what you knew. Before that change, politicians sewed up seats on the bench years in advance, judges were so tied in politically that they were able to keep their seats even in cases of clear incompetence, and the best way to become a judge was to be a member of the House.
The problem with the merit panel is that legislative leaders appoint all 10 of the members, six of whom are legislators. Then the Legislature elects the judges. So the panel lacks the independence that’s crucial to merit selection, which explains why it sometimes seems to play its own brand of politics rather than winnowing the field to the most qualified candidates.
South Carolina’s judicial discipline system, dominate by judge and operating in near-complete secrecy, is broken, as The Post and Courier’s “The Untouchables” investigation with ProPublica revealed. We need less secrecy and fewer judges investigating judges.
The solution is to turn the Merit Selection Commission into a true merit selection commission — one that’s independent.
A modest improvement would kick legislators off the commission and broaden the appointment authority. A bigger improvement would end the Legislature’s total control over the judiciary, by looping the governor into the selection process. If the Legislature insists on electing judges, then the governor should appoint the members of the merit panel — all of them. And if the Legislature is determined to control the merit panel, then it should allow governors to pick the judges from among the panel’s nominees.
When it comes to getting government to work, nobody has come up with a way to improve on the Founding Fathers’ idea of checks and balances.
— The Post and Courier of Charleston