Found Unqualified: A Judicial Election Usurped?

I wrote what follows prior to the chaotic judicial elections held today by the General Assembly. I have long been critical of the judicial review process that we use to elect our judges. However, I try to transform my criticisms into bills that I file or essays that I write. I had decided not to publish it as I have developed an idea that could cast a little sunshine on the process but after today, I felt it should be offered for consideration.

The parliamentary antics today during the judicial elections, while allowed by the House Rules, were ill applied, Mastery of the House Rules gives members an advantage during long debates on controversial subjects. They are tools used for a clear purpose. They should not be used to humiliate individuals in front of their families or to make a mockery of the General Assembly. While many people may not agree with or even like individual members of the General Assembly, we should maintain the dignity of the institution itself. Our “Assembly” has been meeting in some form since 1692, so show some respect.

Now, on with the post –

The House and Senate will convene this Wednesday in a joint assembly to hold our latest round of judicial elections. In South Carolina, the General Assembly elects all of the judges from Family Court all the way to the Supreme Court. We choose from a slate of candidates who are screened by the Judicial Merit Selection Commission (JMSC).

The JMSC was established in 1996 via constitutional amendment to bring accountability to the judicial election process. This was shortly after Lost Trust, the FBI investigation that uncovered rampant corruption in the General Assembly in 1990.

The JMSC relies upon reports from the South Carolina Bar and JMSC’s own self-appointed Citizens Committees to determine which candidates are qualified to sit on the bench. The JMSC holds a public meeting to hear testimony and review the reports. They then vote to determine which candidates are found to be qualified or unqualified.

Since the law only allows three qualified candidates to be screened out to be voted on by the General Assembly, the JMSC will occasionally find a candidate qualified but not screen him out. Oddly enough, the JMSC has also found some candidates to be qualified during one election cycle then found unqualified the next cycle.

Sometimes, the JMSC will find no candidates qualified for a seat and that election is delayed until the next judicial election cycle. The General Assembly will face this situation Wednesday with the Family Court At-Large Seat 1. Two candidates filed for the seat but the JMSC found both to be unqualified.

In this instance, one of the candidates found unqualified is the incumbent judge. 

The JMSC considers the following criteria to determine if an individual is qualified:

1. constitutional qualifications
2. ethical fitness
3. professional and academic ability
4. character
5. reputation
6. physical health
7. mental stability
8. experience
9. judicial temperament

As you will note, the list is a mixture of objective and subjective criteria.

The incumbent judge was found unqualified based on one subjective criterion. A decision based on subjective reasons always invites a why question. Why was the incumbent judge in Family Court At-Large Seat 1 found to have a questionable judicial temperament? 

The answer rests with the JMSC Citizens Committee for the Upstate District. After being codified, the JMSC created five geographic districts to better organize the review of the state’s judicial circuits. Then the JMSC formed the Citizens Committees – the Robespierre-inspired review panels created to investigate and conduct the initial candidate interviews. The JMSC retained the power to appoint all of the members of each committee including the chairman. Hardly the epitome of accountability. 

The Citizens Committee has the authority to evaluate each judicial candidate according to the above listed nine criteria. Information can be collected by interview or by anonymous testimony. Their conclusions are reported to the JMSC for review.

In the case of At-Large Seat 1, the Citizens Committee reported that people complained about the incumbent judge’s judicial temperament. They felt that the judge was too strict in the courtroom, that the judge expected court to start on time and that the judge expected citizens appearing in court to dress appropriately. 

These complaints hardly seem viable reasons to find a sitting judge unqualified for a second term. Consider the experience and training loss of tossing out a young judge on the basis of a few subjective complaints about punctuality. On the remaining 8 criteria, the judge was deemed qualified. The judge was also deemed qualified by the South Carolina Bar.

The Citizens Committee also ignored the judge’s community service – subjective evidence of the judge’s character. This judge formed a juvenile drug court in Spartanburg without using any taxpayer dollars. It meets twice a month after regular court hours. The program takes nine months to complete. During that time, the participants are involved in weekly counseling and random drug screenings. They have to attend school and improve their grades. Volunteers provide the services for the juveniles. If only all judges showed this depth of dedication.

I understand and agree that members of the General Assembly should not determine the candidate slate for judicial elections. However, members of the General Assembly should expect a much more detailed explanation when a sitting judge is denied the opportunity to stand for re-election, especially when the decision comes from the subjective findings of a shadowy committee accountable to no one but their creators.

By not screening out an incumbent judge, the JMSC has effectively usurped the members right to vote on a judge that they had previously elected to the bench.