Governor signs law adjusting how SC picks its judges but calls for more ‘meaningful’ reform

S.C. Supreme Court Justice John Kittredge is questioned by the Judicial Merit Selection Commission on Nov. 6, 2023, about becoming the next chief justice. The panel's chairman (left) is Rep. Micah Caskey, R-West Columbia. The panel's vice-chairman (right) is Senate Judiciary Chairman Luke Rankin, R-Myrtle Beach. (File/Mary Ann Chastain/Special to the SC Daily Gazette)

COLUMBIA – South Carolina Gov. Henry McMaster signed into law legislation tweaking how judges are selected in the state but called on legislators to do more next year to improve the process.

The compromise legislation made some adjustments to the judicial selection process. It puts in term limits for the panelists who screen judicial candidates, potentially provides the General Assembly more qualified candidates to choose from and gives the governor a seat at the table for the first time. But it stopped short of comprehensive changes sought by some people outside the House and Senate.

“I have approved the legislation not because it satisfies the need or public demand for comprehensive judicial reform, but because it contains improvements, although incremental, to the judicial selection process,” the governor wrote in a letter addressed to the Senate. “These changes are only a start. More reform is needed.”

South Carolina is among two states where the Legislature elects most judges.

The process starts with a screening panel, the Judicial Merit Selection Commission, vetting applicants and forwarding the names of three candidates deemed qualified to the entire Legislature for a vote. Of the panel’s 10 current members, six are legislators who are also lawyers. The other four are lawyers appointed by legislators.

Critics, which have included the attorney general and solicitors of both parties, have complained the system gives the Legislature too much power, especially legislators who are also lawyers and appear before the judges they put on the bench.

Prior to a joint assembly election, judicial candidates spend day after day at the Statehouse to try to ensure legislators know who they are and boost their chances.

“It’s completely unprofessional to have good lawyers who would like to be judges and serve the public have to, for example, stand in the parking garage and try to speak to or shake hands briefly with the legislators as they walk by,” McMaster said.

Rather than barring lawyer-legislators, the compromise made it possible for more to be named to the panel.

The new law adds two people to the selection commission, making it a group of 12.

The governor, for the first time, could appoint four lawyers who have been practicing for at least a decade.

The House and Senate would each get four appointments: Four made by the House speaker, two by the Senate president and two by the Senate Judiciary Committee chairman. Of those, two must be lawyers but nothing in the law suggests those attorneys can’t also be members of the Legislature. This means legislative leadership could name as many as eight legislators to the screening panel.

McMaster, in his letter, said legislators should comprise less than half of the panel’s membership and lawyer-legislators should not use these lawyer-designated seats “to expand their (already controversial) authority over judicial selection.

“That would make this legislation reform in name only,” the governor wrote.

McMaster cheered the part that increases the number of candidates forwarded to the full Legislature for an election. Instead of limiting the pool to three, the panel can send up to six for a vote.

Legislators can stay on for four years — two consecutive two-year terms — but then must come off the panel for a term before returning, meaning judges won’t be screened for election and re-election by the same members.

Term limits, the governor wrote, “will help ensure that judicial candidates and sitting judges do not feel beholden to a small cadre of lawyers who appear as perpetual gatekeepers, repeatedly controlling the keys to a candidate’s eligibility to stand for election by the entire General Assembly.”

However, McMaster still thinks his office should have more representation on the commission.

McMaster said the state “would be much better served” by adopting the federal model, with the governor making appointments and the Legislature holding confirmation hearings. Recognizing that a vote from two-thirds of the General Assembly needed to pass such changes is unlikely, he suggested he should be allowed to appoint at least half of the screening panel members.

McMaster said the Legislature should also address how county-level judges, known as magistrates, are selected. The judges— most of whom aren’t attorneys — handle a large caseload, from setting bonds for those arrested on criminal charges to evictions and foreclosures.

Magistrates are technically appointed by the governor. But they’re actually chosen by their local senators, who control when and if they’re replaced.

The House, which plays no role in magistrate selections, attempted to make changes, but those measures did not make it into a compromise with the Senate.

Senate Majority Leader Shane Massey previously told the SC Daily Gazette that some in his chamber did not want to alter the process.

“There are some senators who are very protective of that,” he said.

The Edgefield Republican, who is also an attorney, added that he would personally support reform.

McMaster said, at the very least, the Legislature should end the widespread practice of leaving magistrates whose terms have expired in office year after year without officially re-recommending them for their seat, keeping them in what amounts to a “temporary” status.

The governor said this leaves these judges with their jobs constantly at risk, serving only at the pleasure of their home-county senators, some of whom may regularly appear before them in magistrate’s court, subject to removal at a moment’s notice.

McMaster said if legislators do not make this change to the system, he would consider wielding his authority to make interim appointments or to make nominations on his own without the input of senators.

Because the new law is not set to take effect until July 2025, McMaster said there’s still plenty of time for legislators to make further changes when the new legislative session starts in January.

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