Allies line up on judicial challenge

Within a week, the speed with which the S.C. Supreme Court will deal with what has turned into a heavyweight challenge to the way judges are qualified in this state may well have been decided. Few separations of powers tests have been of more importance.

Today is the deadline for the Legislature to respond to a petition that the state's high court immediately take up major constitutional questions that have the potential of dissolving the S.C. Judicial Merit Selection Commission that lawmakers now dominate.

The goal is to create the kind of independent judicial review that a lawsuit by Family Court Judge Frances Segars-Andrews of Mount Pleasant contends is called for in a 1996 constitutional amendment. Among those who have or will join the judge in asking the court to act quickly are the S.C. League of Women Voters, which has filed its petition, and the S.C. Bar Association. A Bar spokesman said Thursday the Board of Governors has approved filing the "friend of the court" petition and the document was in the drafting stage. He said legal interventions by the Bar are rare and could recall no other involving the judiciary in at least the past two decades.

Since public interest is one of the key criteria for the high court to assume original jurisdiction, it's hard to imagine how this case could fail to qualify for a speedy resolution.

The intervention by statewide groups also speaks to the fact that interest in the case goes more to the broader constitutional issues than the fate of Judge Segars-Andrews, who filed the initial legal challenge after the Commission found her unqualified based primarily on the handling of one case. At the same time, it should be noted that the judge has very vocal supporters.

There has been a simmering discontent, particularly within the legal community, to what once was hailed as judicial reform. The aim of the reform-based constitutional amendment and subsequent enabling legislation was to put a stop to the "good old boy" system of electing judges that had far more to do with legislative friendships than qualifications. While a joint assembly by the House-Senate continues to elect judges, the constitutional change called for creation of a screening commission with the stipulation that lawmakers must choose from among the nominees the commission finds qualified.

But rather than creating an independent, all-citizen review body, the subsequent legislation stipulated that as six out of 10 committee seats be held by sitting lawmakers.

The Segars-Andrews suit contends the legislative domination is a violation of the constitutional intent to create an independent body, not to mention the constitutional ban on dual office holding and the basic tenet of separation of powers.

The S.C. League of Women Voters concurs with the lawsuit's constitutional concerns. Indeed, the League's long-standing interest in the judicial selection process was reflected in a forum it sponsored last year titled "Judicial Selection: Ensuring Quality, Independence and Diversity on the Bench."

The League's petition centers on the voters' loss of an intended "check and balance" on the Legislature's power to elect judges. Rather than following the constitutional mandate that an independent body be the "qualifier," the League contends that the Legislature violated both the dual office holding and separation of powers provisions by allowing legislators to be both "qualifiers" and "selectors."

This isn't the first challenge to the Judicial Selection Commission since it was established. But the previous challenge, filed by a Greenville-based citizens watchdog group headed by Ed Sloan, centered on whether the commission had adequately investigated a judicial candidate. In that instance, the high court agreed with a lower court's finding that the question raised was more political than judicial. The opinion did note, however, that the Legislature isn't off limits when it comes to constitutional challenges .

It should come as no surprise that Sloan is staying abreast of the constitutional questions that now have been raised in regard to the Commission. In fact, his attorney already is taking a look at another group of screeners -- the Joint Transportation Review Commission -- that is the product of yet another outcry for reform. In that instance, eight out of 10 of the screeners who qualify candidates for the highway commission are legislators.

Even in the face of scandal, lawmakers have continued to demonstrate their unwillingness to cede appointment powers, opting for window dressing over substantial change.

But the demand for judicial reform was strong enough to force a constitutional change, which is thought to put the challenge to the Judicial Merit Selection Commission on much stronger legal ground.

Legislative leaders have made it clear they disagree. What shouldn't be in dispute is the need for the high court to resolve this constitutional standoff as soon as procedurally possible.

Barbara S. Williams, editor emeritus of The Post and Courier, may be reached at bwilliams@postandcourier.com.