Picking the Supremes: The Impact of Money, Politics, and Influence in Judicial Elections
Cosby, Teresa Nesbitt, Faulkner Law Review
C. Beyond Beatty--Other Impacts and Implications
Aside from who is actually placed in office, election of judicial officials also implicates issues such as separation of powers, delegation of those powers, conflict of interests, lack of diversity on the bench, and cronyism in selection of judicial nominees.
1. Separation of Powers and Voting Rights
In January of 2010, the League of Women Voters of South Carolina (LWVSC) submitted an amicus brief to the Supreme Court of South Carolina in Segars-Andrews v. Judicial Merit Selection Commission, alleging that the legislative election method of selecting judges violated separation of powers. (342) Segars-Andrews asked the high court to invalidate a decision by the Judicial Merit Selection Committee (JMSC) that found her unqualified to continue to serve because of an ethics violation. (343) The controversy arose in a family court case in which the judge was asked to recuse herself based on a potential conflict of interest. (344) Her refusal to grant the motion became the basis for the decision of the JMSC to refuse to qualify her for another term. (345)
The LWVSC contended "that the legislature violated the intent of a 1996 constitutional amendment when it stacked a newly formed judicial nominating commission with state lawmakers." (346) In its brief the League argued "that the Legislature improperly qualifies and nominates judges [in addition to] voting on the final appointment"; South Carolina's system allows Legislators to control the JMSC and the ultimate election of candidates for judgeships. LWVSC argues that by controlling both processes the selection process used in South Carolina vests absolute control of judicial elections in the Legislature against the intent of the voters to separate the JMSC nominating process from the legislative election procedures The group warned of a "'lack of a check and balance on the Legislature's power[.]'" (348) The South Carolina Bar Association supported the LWVSC in its petition. The Bar argued that "[t]he aim of the reform-based constitutional amendment and ... enabling legisation was to put a stop to the 'good old boy' system of electing judges[.]" (349) However, the legislation reserved six of the ten committee seats for sitting lawmakers instead of creating an independent, all-citizen review body. (350) Segars-Andrews' suit charged "that the ten-member commision, ... made up of ... sitting state lawmakers, violates the S.C. Constitution because voters never intended [for] the Legislature to control the [JMSC]." (351) In her brief, Segars-Andrews argued that the purpose of S.C. CONST. art. V, [section] 27 was to create an independent body "'whose concurrence was a condition precedent to the General Assembly's selection of a judge.'" (352) Segars-Andrews argued that the JMSC's composition "frustrates the very reason for its creation." (353)
The court ruled against Segars-Andrews, finding, among other things, that the Legislature has flexibility in crafting implementing statutes and that the case presented a political question. (354) Addressing a similar argument regarding Virginia's system of legislative dominance in judicial selection, J. Amy Dillard, Assistant Professor of Law at the University of Baltimore School of Law, pointed out that "Virginia's judicial appointment scheme does not violate the ... doctrine of separation of powers" found in the United States Constitution because the principle applies only to the federal government. (355) Therefore, the separation of powers concept found in the federal constitution does not bind state governments. (356) The South Carolina Supreme Court's holding ends the legal controversy; however, it did not end the political discussion of whether the Legislature weilds too much influence in selecting judges. In Federalist No. 78, Alexander Hamilton cautioned that "[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution. …