In case you didn't know, South Carolina's judges are elected by lawmakers.
It's taken me four judicial elections over the last two years to catch on, but there is a nasty little vote-hiding scheme that consistently costs conservatives judges the election. It's time for this to end.
Some legislators like to boast that the South Carolina Way of picking judges is superior to other states as being the most ethical, least political—as if South Carolinian legislators are the most ethical, least political voters in the country. I'll let you be the judge of that!
If you want to be a judge in South Carolina, here is how the process works:
- Prospective candidates make individual contact with each legislator announcing their intention to run. They are careful to explain they are not asking for our vote, for that would be against the rules, but are merely seeking to "get acquainted."
- Candidates file to run for the judicial office they desire.
- Candidates are interviewed by the Judicial Merit Selection Commission, a ten-member board appointed by the legislature. Currently, six of the ten commissioners are legislators themselves.
- The JMSC rates all the candidates, finding each one "highly qualified," "qualified," or "not qualified." From the qualified candidates, the commission nominates up to three. The JMSC is known to sway the election in their favor by picking one "highly qualified" candidate, one minority candidate who is less than "highly qualified", and one "qualified" candidate. Guess which candidate is most likely to get elected? The one with the prized label of "highly qualified."
- Approximately one week after the JMSC publishes its findings and nominations in a draft report, the report is finalized and the nominated candidates are allowed to officially ask for legislators' votes. This is called getting commitments, and most commitments are obtained on the opening day. I learned the hard way early on that candidates are prohibited by the Judicial Canons from answering substantive questions about their political views or how they might rule on a given case, so I can only surmise that most commitments are given on the basis of friendship or reputation. To enhance this process, judicial candidates will stand in the parking garage and entrances to the capitol to greet and shmooze with legislators as they arrive.
- Within a matter of days, candidates who don't get enough commitments start dropping out. One candidate told me, "I was told the writing was on the wall and it was better not to make you all vote." It is considered bad decorum for any candidate who is not in the lead to stay in the race all the way to the end.
- By the time the House and Senate gets together to hold the election, only one candidate is usually left standing in each race.
The real voting process is when commitments are being collected behind the scenes. The public is not privy to know what candidates their legislators commit to, and legislators know they will be excused for voting publicly for a bad candidate if that candidate is the only one left. They will say that they had no choice. On top of that, the vote for the last man standing is usually a voice vote, which is not recorded.
The results speak for themselves.
- In a Charleston family court race, I committed to Spiros Ferderigos, a father of Greek Orthodox faith. He would have made a terrific family court judge but he dropped out before the election. The public will never know who opposed him. The same thing happened to James Alexander, and Thomas Hodges, who ran for other family court seats, and Jerome Askins, a candidate for Circuit Court. (Ferderigos and Alexander actually ran twice.)
- A recent Supreme Court race involved Administrative Law Court Chief Justice Trip Anderson, Appeals Court Chief Justice John Few, and Appeals Court Justice Bruce Williams. Few was favored by a number of Upstate legislators, especially Majority Leader Bruce Bannister, and Williams was favored by House Democrats. When it became apparent that Few couldn't get the votes to beat Williams unless Anderson dropped out, tremendous pressure was brought to bear on Judge Anderson to drop out. A deal was reportedly made, the details of which were not shared with me, but House leadership was believed to be in on it. The weekend before the election, some supporters of Judge Few began spreading rumors that Judge Anderson "might" be dropping out soon, and asking lawmakers to commit to Few as their "second" choice. (I was asked repeatedly.) This tactic apparently cost Judge Anderson several votes, and he dropped out an hour before the election, clearing the way for Few.
- Few's election to the Supreme Court opened up a vacancy for Chief Justice of the Appeals Court. The election was a race between Appeals Court Justices Paula Thomas and James Lockemy. Judge Thomas, a former Republican member of the State House of Representatives, was the clear conservative choice, but she like many others was pushed to drop out since she didn't have enough commitments. We'll never know if this was actually true, since her dropping out literally moments before the vote allowed Judge Lockemy to be elected by acclamation. This election should have been postponed to allow ethics allegations against Judge Lockemy to be investigated and either prosecuted or cleared, but the majority of the House and Senate refused, choosing instead to vote for their friend Lockemy while he was ahead, whether by fair means or foul.
This highlights the need once again for judicial independence. Opponents of this reform say the current process is best because no money is raised or spent on judicial campaigns, while ignoring the blatant conflicts of interest that can arise when attorney-legislators eventually stand in court to prosecute or defend their clients to the very judges they helped elect. Naturally they want to win their case, and money is on the line. A wink and a nod is all it takes to remind a judge contemplating ruling against the attorney-legislator of who he is beholden to for his job.
Besides, how is the public served by keeping judicial election votes off the record? I dare say that any other method would be better than this, because at least everything would be out in the open for you to see.