Editorial: Long-awaited reform on how SC picks judges will help, but it doesn’t go far enough

The reform measure the Legislature sent to Gov. Henry McMaster on Wednesday won’t solve the multitudinous problems with the way South Carolina picks judges.

The governor still won’t have anywhere near as much say as the Legislature in selecting the members of the third branch of government.

And lawyer-legislators still will retain inordinate sway over the careers of judges they practice before — creating the appearance if not the reality of preferential treatment.

But the bill — more than a year in the making and far longer than that in the needing — provides a good first step to addressing real and perceived flaws that threaten public confidence in our judicial system. We urge Mr. McMaster to sign it.

For the first time, it allows the governor to appoint some members to the Judicial Merit Selection Commission, which decides who legislators can elect or reelect to the Supreme Court, the Court of Appeals and the Circuit and Family courts. Governors have never had any say in those elections, and they still won’t participate in the vote, but S.1046 lets the governor appoint four of the 12 commissioners.

House and Senate leaders will still pick the eight other members, and six of them have to be legislators; technically, the bill allows all eight to be legislators, which would ensure legislators’ continued majority on the panel, but if House or Senate leaders choose to interpret it that way, it will be a massive betrayal of the public trust.

Perhaps equally important, legislators will be limited to four consecutive years on the panel, and all but three current members will be expelled from the commission when the law takes effect in a year. Among those leaving will be House Democratic Leader Todd Rutherford, who has made himself the poster child for how lawyer-legislators can manipulate that position to their personal advantage. (Additionally, commissioners have to resign if a relative files to run for a judgeship.)

As long as the Legislature elects judges, the governor should appoint all the members of the screening panel; that’s the only way to create the balance of powers that is foundational to our nation’s system of governance. Barring that, lawyer-legislators should be prohibited from serving on the panel: One chance to influence who becomes a judge — when they vote in the election — is enough; that second opportunity is the root of most of the evil that South Carolina’s prosecutors have been complaining about for more than a year.

It’s worth noting that lawmakers agreed to give the governor some say on the commission at the very same moment they reduced the commission’s power: It still will be able to end the careers and the hopes of judges and would-be judges, but in most cases, it no longer will be able to nominate its favorites from among multiple qualified candidates. Now, instead of nominating a maximum of three candidates for each seat, the so-called cap will be six — which is more than the number of candidates in most contests — so if six candidates are found qualified, all six of them will stand for election.

The other smart reforms are a requirement that screening hearings be livestreamed and a related ban on candidates dropping out before the commission issues its report on their qualifications. Both are designed to stop the panel from pressuring candidates to drop out after screening by suggesting that the public will see unflattering material about them if they don’t.

As Upstate Solicitor Kevin Brackett tells us, “This is helpful, but some of the main structures that ensure legislative dominance are still in place and need to be addressed.” That means getting lawyer-legislators off the screening commission and, ideally, allowing the governor to appoint all 12 members. It’s not too soon to start working on that next round of reforms.