SC attorney general calls for governor to have greater role in judicial selection

Some South Carolina prosecutors believe public confidence in the state’s judiciary is waning and that something needs to change to regain it.
Published: Nov. 15, 2023 at 5:54 PM EST|Updated: Nov. 15, 2023 at 9:07 PM EST
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COLUMBIA, S.C. (WCSC) - Some South Carolina prosecutors believe public confidence in the state’s judiciary is waning and that something needs to change to regain it.

Attorney General Alan Wilson is among those urging South Carolina to revamp the way it picks judges.

South Carolina is one of two states where the legislature elects judges.

While the state’s three, coequal branches of government are supposed to operate under a series of checks and balances on each other, Wilson argues his branch, the executive, is left out of this process.

“Right now, we’re not at the same table as the legislature. We’re not even at the kids’ table. We’re outside, with our face pressed to the glass,” Wilson told lawmakers on a House committee studying judicial reform this week.

Wilson’s recommendations for the committee focused on the Judicial Merit Selection Commission, or JMSC.

It annually screens judicial candidates, determines who is qualified, and advances up to three candidates for each seat to the General Assembly for its elections.

The 10-member JMSC is predominantly made up of lawmakers, who are typically also lawyers.

Among Wilson’s recommendations, he believes lawyer-legislators should not be able to serve on the screening panel, an appeal also made by several solicitors.

Their concern is that the current system produces, at the very least, a perception of unfairness, if not actual impropriety, because the lawmakers who screen and later select judges could later appear before them in court as attorneys.

Wilson believes the governor, the head of state’s executive branch, should be able to appoint most, if not all, members of JMSC.

Right now, the governor does have the power to appoint any.

“We want to be an equal partner in how judges that go through the JMSC are selected,” Wilson said.

Rep. Micah Caskey, R – Lexington and the only person to sit on both the judicial screening panel and the House committee studying judicial reform, questioned whether that would be an improvement.

“I’m saying that if a legislator who serves on JMSC is tarnished with the appearance or potential appearance of a conflict of interest, that that same appearance or actual conflict of interest would attach to an appointee who practices law,” Caskey, an attorney, said.

Wilson responded this switch would bring statewide accountability to the process instead of through lawmakers who only represent the people within their districts.

“Everyone gets to vote for the governor, and if there is an inappropriate or perceived conflict of interest by a gubernatorial appointment, exercising their authority as a member of the JMSC, as an attorney appearing before the judges, people can go directly to the governor,” he said.

The attorney general also recommended setting term limits on JMSC membership, removing the JMSC from under the legislature’s funding umbrella, and nixing the three-person cap on how many candidates the screening panel can advance to the General Assembly for its consideration.

The changes Wilson wants would need legislative approval.

The attorney general told lawmakers he is not advocating for a constitutional change, like moving to a system in which the governor appoints judges or voters elect them. A change in the South Carolina Constitution is harder to achieve, needing to reach a higher vote threshold in the General Assembly and be approved by voters.

Gov. Henry McMaster has previously voiced his support for South Carolina to move to a system akin to the federal judicial selection model, wherein the governor would appoint judges with Senate approval.

The judicial reform committee will have to submit its recommendations to the full House of Representatives by next February, when the legislature is back in session in Columbia.