How else should we select judges?

Posted Wednesday, March 24th, 2010 by Gregory Forman
Filed under Jurisprudence, Not South Carolina Specific, Of Interest to General Public

Democracy is the worst form of government except for all those others that have been tried.
– Winston Churchill

It’s clear that the Supreme Court’s Per Curiam opinion (an opinion in which the author remains anonymous) in Segars-Andrews v. Judicial Merit Selection Commission, 387 S.C. 109, 691 S.E.2d 453 (2010), was painful for the Justices to issue.  While deciding that there were no constitutional infirmities in the makeup of the Judicial Merit Selection Commission or in the Commission’s decision that Judge Segars-Andrews was “unqualified” to be reelected as a family court judge, the Supreme Court included the following language:

Judge Segars-Andrews (Petitioner) was elected by the General Assembly to the family court bench in 1993.  Petitioner has served ably and with honor as a family court judge.  The South Carolina House of Representatives honored Petitioner for her many years of volunteer service to the Charleston County Juvenile Drug Court.  Since her election in 1994, Petitioner has been re-elected for successive six-year terms in 1998 and 2004.

The only reason for such language is to indicate the Justices’ high regard for Segars-Andrews. Typically appellate opinions that rule against a party highlight the facts that are unfavorable for that party; here the Supreme Court does the opposite.  The Supreme Court’s reason for doing this is subtle but obvious: to highly its displeasure with the Commission’s decision on Judge Segars-Andrews’ qualifications.  Its opinion basically stands for the proposition that the selection of judges is a political decision and that under the South Carolina Constitution the Judicial Merit Selection Commission acts as the gatekeeper as to which candidates the legislature may consider for judgeship.  That the Supreme Court may disagree with the Commission’s decision regarding this particular judge does not change the constitutional analysis that under our Constitution it is our Judicial Merit Selection Commission that nominates judicial candidates and our legislature that elects them.  Other than insuring that the constitutional process is followed in the nomination and election of judicial candidate, the judiciary has no role in the selection of judges.  As the Supreme Court noted:

The South Carolina Constitution expressly vests in the JMSC [Judicial Merit Selection Commission] the sole determination of a judicial candidate’s qualifications, and the General Assembly is constitutionally charged with the election and re-election of judges found qualified by the JMSC.  Absent an unconstitutional exercise of those powers, the Court may not intervene in these political determinations.  To judicially intervene in the purely political determination of the JMSC would itself violate separation of powers.

Judge Segars-Andrews’ supporters note that the decision to find her “unqualified” was a “political” decision.  This is undoubtably true.  However, equally true is a statement that the decisions to elect her as a family court judge initially and to reelect her in 1998 and 2004, were “political” decisions.  When we elect judges, it cannot be otherwise.  We could make judicial selections through a civil service process as is done in France, which would greatly reduce the “politics” of judicial selection–though it would shift the politicking from decisions on individual judges to decisions on civil service criteria or the makeup of civil service boards.  However, given the system we have, judicial selection requires political decision making and political decision making almost ensures occasional decisions that violate the general public’s sense of norms.

Were I left in charge of selecting family court judges, I would base selections on four criteria in decreasing order of importance: integrity, judicial temperament, legal knowledge, and experience.  Other than my first criteria–I have seen no one nominated for judge in which the Judicial Merit Selection Commission has raised integrity issues–the Commission and the legislature seem less concerned, though not unconcerned, with my other criteria than I would want them to be.  A number of judicial elections only make sense when analyzed through the criteria of a candidate’s close relationship to members of the legislature.  It has been my general observation that female candidates or candidates of-color are much more likely to be elected within ten to fifteen years of graduating law school than are white male candidates, which most charitably can be seen as a desire to have a judiciary that reflects the general population of South Carolina.  These judicial selection factors have little value to me personally but have greater value to elected legislators.  Expecting legislators to not use such political criteria in judicial selection is to expect the impossible: one cannot remove politics from political decision making.  I and many of my colleagues may loath that it was “politics” that led the Judicial Merit Selection Commission to find Judge Segars-Andrews unqualified under what appears to be a specious factual and analytical basis but this is what makes democracy the worst form of government except for all the others that have been tried.

The Supreme Court’s opinion noted this quandary:

All but three states impose some sort of re-election process, from public elections, to retention elections, to reappointment by the executive or the legislature.  “Thus, in 47 states, incumbent judges know that their ability to keep their jobs depends on gaining the approval of others. This is hardly a scheme calculated to ensure that judges will apply the law. Reappointments and reelections are instituted precisely so that the incumbent judges do not stray too far from the preferences of the reappointing authorities. From an independence perspective, it makes no difference whether the re-selection is done by popular election or reappointment; in both cases judges are made answerable– accountable–for their decisions to an institution that is concerned with political results far more than with legal principle.” Michael R. Dimino, Sr., Accountability Before the Fact, 22 Notre Dame J.L. Ethics & Pub. Pol’y 451 (2008).

If the political results of the Commission’s finding that Judge Segars-Andrews is unqualified to remain a judge are unappealing, I suspect the political results from popular election of family court judges would be vastly worse.  Imagine judicial candidates taking public positions on custody, alimony, marital property and other hotly contested issues.  Imagine having to appear before a family court judge who took a very public position on the award of alimony or the general credibility of  persons alleging domestic abuse.  In Caperton v. A.T. Massey Coal Co. Inc., the United Supreme Court required a West Virginia Supreme Court Justice’s recusal where that Justice had received $3 million in campaign contributions from Massey Coal’s CEO and then ruled favorably for Massey Coal in overturning a $50 million damage award against the company.  Because there is not popular election of judges in South Carolina that sort of problem doesn’t occur here.  Life tenure for judges “during good Behavior,” as exists in the Federal Court system, removes the political decisions surrounding reelection but can lead to a sclerotic judiciary with contentious and highly-partisan battles over judicial nominations.  While judicial elections in which the governor nominates and the legislature approves candidates provides for clearer accountability, they do nothing to remove the politics from judicial selection.

The biggest problem with the Judicial Merit Selection Commission may be its domination by the legislature.  The Commission was established in 1997 by constitutional amendment and its authority is set forth in Article V, § 27 of the South Carolina Constitution.  It is my understanding that the purpose of the amendment was to distance political considerations from judicial selection by ensuring that judges were found qualified before they could be considered for election by the legislature.

The flaw in the amendment is that this constitutional provision sets the authority to establish the Commission with General Assembly.  The General Assembly then created a system in which six of the ten members of the Commission must be members of the General Assembly.  See S.C. Code Ann. §2-19-10(B).  By requiring the majority of Commission members to be members of the General Assembly, our legislature introduced the very political considerations into the Judicial Merit Selection Commission that the Commission was intended to limit.

Segars-Andrews’ complaint challenged the composition of the Judicial Merit Selection Commission by alleging it violated the dual office holding prohibitions contained in the South Carolina Constitution.  Article III, § 24 of the South Carolina Constitution provides:

No person is eligible to a seat in the General Assembly while he holds any office or position of profit or trust under this State, the United States of America, or any of them, or under any other power, except officers in the militia, members of lawfully and regularly organized fire departments, constables, and notaries public.  If any member accepts or exercises any of the disqualifying offices or positions he shall vacate his seat.

Article VI, § 3 of the South Carolina Constitution provides:

No person may hold two offices of honor or profit at the same time.  This limitation does not apply to officers in the militia, notaries public, members of lawfully and regularly organized fire departments, constables, or delegates to a constitutional convention.

The Supreme Court held against Segars-Andrews because it found “members of the General Assembly may properly serve on the JMSC as such service is reasonably incidental to the full and effective exercise of their legislative powers.”  Whether such service on the Judicial Merit Selection Commission “is reasonably incidental to the full and effective exercise of” the legislature’s authority to elect judges is a jurisprudential question I might have resolved differently.  Is the Judicial Merit Selection Commission a subset of the legislative selection process for judges (in which case the Supreme Court’s analysis is correct) or is it supposed to be an independent body that selects whom the legislature may consider for judgeship?  The Supreme Court’s decision effectively vitiates the Judicial Merit Selection Commission’s independence from the General Assembly.

The decision to not renominate Judge Segars-Andrews was crass politics.  Hopefully it will be bad politics (i.e., I hope some legislators lose their seats over this decision).  But for everyone decrying the “politics” of the decision, I would ask “how else should we select judges?”

One thought on How else should we select judges?

  1. SubZeroIQ says:

    I am tired of this Euro-centric and now South Carolina-centric view that essentially accepts that everything a dead white man did or said, though very bad, is the best in the world. This of course refers to the Winston Churchill quotation with which you start. And I conclude that there ARE better ways to seat judges, except that they have not been thought of by white men in Europe or South Carolina.

    Before I do that, and to bolster my effort to have platitutes questioned and rejected if unsound, I would like to attack two oft-quoted but really vacuous assertions by the long-dead Justice Oliver Wendell Holmes. He said, “He who represents himself has a fool for a client.” I hope the 21st Century finally turns to actual observation, which is the basis of Science, which, in turn, is the real basis of progress. UGa Law Professor Erica Hashimoto did an emperical study and found that pro se criminal defendants do SLIGHTLY better than represented ones in the only area that matters: THE OUTCOME. Holmes also said, “The First Amendment does not give a right to yell ‘FIRE!’ in a crowded theater and cause a stampede.” First, what is a fire drill other than yelling ‘FIRE!’ (or, more accurately, ringing the fire alarm) when there really is no fire. Next, all public places must have pre-set routes and procedures for the evacuation of patrons in case of real fire. In a public place that has adequate procedures for fire evacuation, only an orderly evacuation will result and after it is determined that there was no actual fire, everyone returns to what they were doing. If the establishement does NOT have adequate fire precautions in place, it may be a good thing to discover that with a hoax before there is a real fire so remedies can be instituted before there is a real fire and lives are lost. DON’T YOU WISH SOMEONE HAD YELLED ‘FIRE!’ IN THAT CHARLESTON MATTRESS STORE AT A TIME BEFORE THE REAL FIRE OCCURED? Then, whatever deficiencies in the building or the fire department’s training may have been discovered before lives were lost.
    Having shown how dangerous platitudes are, I emphatically assert that there is a better way. The ENTIRE group of SC judges, from municipal judge to Chief Justice, forming an annual convention for the sole purpose of nominating judges for open seats and presenting the nominees for an up-or-down referandum by all SC people. Judges nominating judges occurs in some form when Article III federal judges appoint non-Article III federal magistrate judges.

    Think about this idea; but do not accept the present systems as the best possible just because a dead white man said so. Thanks for publishing, reading, and responding to this.

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