Guest Column: South Carolina Needs True Separation of Powers

Sir: No one can seriously argue against the proposition that a professional and independent judiciary is indispensable to the proper functioning of a healthy republic. And certainly, if there are ways to advance the interests of professionalism and independence in the selection of our judiciary, then we ought to consider them. With sincere respect, the DOGESC proposal does not seem to do that.

The purpose of JMSC is to provide a level of civil-service vetting among candidates for judicial office to facilitate the Legislature’s responsibility to elect qualified members of our Bar to comprise our judiciary. Frankly, despite how JMSC has been publicly maligned, my perspective is that they have done a very good job over its history.

In any event, under the most recent amendment to JMSC, it is presently comprised of 4 members appointed by the House, 4 by the Senate, and 4 by the Governor. In short, each of the political branches presently has representation on JMSC, which is important, since only the candidates nominated by JMSC are eligible to be voted on by the Legislature. The DOGESC proposal would create a JMSC that is filled entirely by political appointees of the Governor. I understand the proposal disqualifies those who have “individually contributed” to the Governor’s campaign. But obviously, this exclusion would not apply those who contributed to the Governor’s campaign through a company, or a law firm, or through a PAC.

Regardless, it seems the central criticism of DOGESC is that the current environment creates a patronage system between members of JMSC and those seeking judicial office. That may be a fair criticism, but the situation does not improve by making the Governor the beneficiary of patronage instead of the Legislature.

I am also troubled by the lack of qualifications suggested by the DOGESC proposal. It merely states that the Governor may appoint 12 people, 8 of which must be “members of the Bar in good standing” (without any requirement on years of practice), and up to 4 may be law enforcement professionals (again, without any clarity as to what this means or what experience is required). As a result, this bill could tolerate the Governor appointing 12 newly minted lawyers and sheriff’s deputies to JMSC, who would have exclusive control over which candidates get elevated to the General Assembly for a vote. I fail to see how, under this scenario, JMSC would be little more than a puppet of the Governor, or how the interests of promoting a professional and independent judiciary are advanced.

As a final observation, I am stunned that this bill would be sponsored by any member of the Senate. It is well-known that judicial seats are generally won or lost on the House floor, which already limits the Senate’s influence. Presently, the Senate has at least an equal voice on JMSC; but under the DOGESC proposal, they lose that.

In sum, in my estimation, the General Assembly has everything to lose under the DOGESC proposal and nothing to gain, and I do not see with any clarity how this modification improves the judiciary or the intersection of the people of this State with its justice system.