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Picking the supremes: the impact of money, politics, and influence in judicial elections.

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." (357)

2. Delegation

Another complaint of detractors of South Carolina and Virginia's system is that the Legislature has delegated a legislative power to non-Legislators. (358) The JMSC's purpose, they argue, when measured against the constitutional power given to the Legislature, is an improper delegation of legislative authority. (359) The detractors argue that the South Carolina Constitution delegates the authority to the Legislature to elect judges--not to a screening committee composed of Legislators and lay persons. (360) By not reporting out all qualified judges to allow a vote in the Legislature, the JMSC is actually voting not to elect a qualified judge. (361) Hence, the function of electing judges is determined by a committee of elected persons and non-elected persons. (362) Critics argue that all qualified judges should be reported out, and anyone who has gone through the process and has been found qualified, but has not had their name submitted to the Legislature for consideration, has standing to challenge the structure of the JMSC. (363) The Supreme Court of South Carolina has not ruled directly on this issue and relevant case law is not clear. (364) Therefore, the question remains as to whether SS2-19-10(b) violates the Latin maxim, delegato potestas non potest delegari, "a power once delegated cannot be redelegated." (365)

3. Conflicts

a. The Supreme Court and the Legislature

In a study conducted by Daniel Pinello he concluded that the behavior of judges is impacted by the manner in which they are appointed, to wit:

1. Popularly elected judges will prefer the state over the individual and business when those interest clash, but otherwise the individual over business;

2. Gubernatorially appointed judges will prefer business over the individual and the state, but otherwise the individual over the state; and

3. Legislatively selected judges will acquiesce to the preferences of the other branches of government and generally be as inactive as possible with regard to policy initiation. (366)

The method used to select judges is important in our democratic system of governance. (367) If a presumption exists that judges elected by the Legislature will tend to side with the Legislature, then this effects the appearance of impartiality among the Court. (368) Pinello's theory is echoed in the comments of former South Carolina Governor Mark Sanford. (369) On June 2, 2009, Sanford argued that the South Carolina Supreme Court could not be fair. (370) Sanford was in the middle of a fight with the Legislature to assert his authority to refuse federal stimulus money. (371) Sanford predicted that he would lose the battle in the courts because of the Legislature's role in appointing justices to the South Carolina Supreme Court, which must then decide cases involving an entity that directly funds its justices. (372)
   I think even where the court case ends up underscores in essence
   good people trapped in a horrible system. We have in this case a
   Supreme Court that is picked by the General Assembly. They
   regularly lobby the General Assembly for funding and other things
   .... You could have five Solomons, but at the end of the day if you
   had to go to another group to get funded and to give you the goal
   posts, if you will, for your playing field it would be very, very
   tough spot in which to operate. (373)


Sanford did lose the stimulus suit. (374) South Carolina's current governor, Nikki Haley, received a dose of the same medicine Sanford received when the Legislature challenged her attempt to compel the General Assembly to reconvene in a special session on June 14, 2011, and continue in session no later than July 1, 2011. (375) In a three-two decision the court found in favor of the Legislature and ruled that Governor Haley had violated the separation of powers provision of the South Carolina Constitution. (376) Of course, this is anedoctal evidence that the courts may or may not be biased, but that is not important to this discussion. What is important is the fact that it does matter that the state courts are elected by the Legislature, and that its rulings in support of the Legislature raise doubts about the Court's capacity to remain impartial. (377)

b. Legislator-Lawyers and the "Scales of Justice"

An additional problem with this method of selection is a growing concern over lawyer/legislator conflicts of interests. A potential conflict arises when legislator-lawyers appear before judges they have a role in electing. A practicing lawyer complained that it is unfair to have to defend cases against Legislators because the judges give them deference and it puts other clients at a legal disadvantage. (378) An elected South Carolina trial court judge explains that "[a] conflict of interest benefits particular politicians because of their role in electing a particular judge." (379)

This concern is shared in Virginia because it also relies upon the local delegation to endorse a judge. (380) In Virginia, the local delegation is a group of full-time attorneys who also serve as part-time legislators. (381) In this dual role, many of these attorneys will practice before judges that they helped to place on the bench. (382) This practice raises the same conflict of interest concern expressed by practicing lawyers in South Carolina. (383) "These attorney-legislators have a vested financial interest in maintaining the status quo and putting judges back on the bench regardless of their fitness to serve." (384)

4.Diversity

The most observable impact of South Carolina's elective system is the lack of diversity on its highest trial court. Representative David Weeks admitted that "[w]e have failed miserably in that regard. She's alright if she wants to be on the Family Court but not the Circuit Court." (385) In the opinion of Ciara Torres-Spelliscy, counsel for the Democracy Program at the Brennan Center for Justice, if the group screening a candidate is diverse, it tends to recommend a diverse pool of applicants. (386) The JMSC is currently staffed by nine men and one woman; three members are African-Americans. (387) In 2011, South Carolina has a total in-state bar membership of 9,537. (388) In 2009 he LWVSC reported the only numbers that could be located on the gender and racial composition of the South Carolina bar; hence, these numbers are being used as a point of comparison with 2011 numbers. The League reports that in 2009 3,191 or 34% of the South Carolina Bar were female and 497 or 5.3% were African-American. (389) South Carolina's population is 51.3% women, 48.7% male, 28.1% African-American, 5.3% Hispanic, 1.4% Asian, and 0.5% American Indian or Alaska Native. (390)

The racial and gender composition of the courts in South Carolina do not come close to mirroring these statistics. (391) African-Americans actually have a higher percentage of their population in judgeships than in the state bar, but this is still below their percentage of the general population. (392) By comparison, the performance of women is dismal. (393) African-Americans make up 20% of the five member Supreme Court and 11% of the nine member Court of Appeals. (394) Women account for 40% of the Supreme Court and 22% of the Court of Appeals. (395) In the Family Court, African-Americans account for 13% of the fifty-two member court (seven judges). Women account for 37% of the Family Court (nineteen members). (396) However, the story is more telling when looking at the diversity of the state's trial courts of general jurisdiction. As Representive Weeks pointed out, the numbers are not so good. (397) For instance, there are five African-American circuit court judges out of a total number of forty-six, representing 11% (rounded-up) of the courts. (398) Eight women, three of which are African-American, also sat at the circuit court level in June of 2010, which is 17.4% (rounded-up) of that Court, while women represent 35% of the Bar and 51.3% of the general population. (399)

It is intriguing when evaluating these numbers that when women campaign for the only judgeship that the public votes for directly in South Carolina, Probate Judge, they win 63% of those elections! (400) African-Americans only secure 4% of those seats via public election. (401) The explanation often given for why the legislature does not elect more women and minorities is that they (specifically minorities) are not entering the legal profession, rather than the method of judicial selection. (402) However, a report by the JMSC contradicts this argument. (403) The report reveals that between the fall of 2005 and the fall of 2009, 292 males (74.4% of judicial candidates), 100 females (25.5% of judicial candidates), and 47 African-Americans (11.9% of judicial candidates) were screened for judicial positions. (404) Clearly, there were sufficient numbers among these demographic groups to seize the opportunity to create a more diverse judiciary in South Carolina. The reason for the disparate statistics may be easier to explain by examining the composition of the South Carolina Legislature.

The racial breakdown of the Legislature of South Carolina is 83% white, 17% African-American, 0% Hispanic, and 0% Native American; 91% of the Legislature is male and 9% is female. (405) Furthermore, 46% of the Legislature is between fifty and sixty-four years old. (406) These numbers show the demographics of the group electing state judges in South Carolina do not reflect the racial, gender, and age diversity in the state--a fact that is mirrored by the lack of diversity in the state's judiciary. (407) It is not an insignificant fact that "more women and members of minority groups become judges when chosen through an appointive process than when recruited through any elective system." (408) When 98% of all litigation in this country occurs in state courts, (409) it is important to create a level playing field in fact and in appearance.

The good news is that in 2011 three new female judges were elected to the Circuit Court of South Carolina. (410) This news, however, does not negate the fact that a different method of judicial selection is needed to remedy the persistent and deep deficit of female and minority judges among the state's highest trial court. If this deficit is not remedied, the potential exists for the public to lose confidence in the fairness and impartiality of the courts. If this happens, the entire system of justice and democracy will be jeopardized. (411)

5. "Two hamburgers and a steak"

The phrase "two hamburgers and a steak" reflects a belief that powerful Legislators send cues to the legislative body as a whole that the "steak" is the preferred candidate for election among the three qualified candidates to choose from. (412) This belief leads many attorneys to believe that judgeships in South Carolina are pre-promised. (413) "Before anyone throws their hat into the ring they must first determine if the judgeship is already committed." (414) This perception potentially impacts minority candidates and women the most because they are historically the groups most removed from the seats of power. (415) According to a trial judge, there are qualified lawyers who do not run because of the process. (416) Schools teach that America has a democratic process, but what happens in this process is disturbing because it can be perceived as anti-democratic. (417) This belief bolsters the perception of a culture of exclusion. Arguably, the present system discourages individuals who may be interested in running for a judgeship, but who have not developed the relationships necessary to launch a successful candidacy. While there is no direct evidence to support the "two hamburgers and a steak" legend, the fact that its legitimacy is presumed reflects the South Carolina legal community's skepticism about the fairness of the judicial election process. As one judge explained, the process is daunting and she understands why people will not run for a judgeship. (418)

6. The Future

South Carolina is a one party state. (419) When states are no longer dominated by one party there is a corresponding increase in political competition, particularly in the South. (420) The present acrimony existing in the Virginia Legislature is evidence of this fact and should also serve as a warning for South Carolina. (421) Virginia has moved from a system of one-party dominance to control of the House of Delegates alternating between Democrats and Republicans in any given year. (422) Just like South Carolina, the Virginia General Assembly controls the process of selecting the judiciary. (423) In Virginia, "legislators openly apply a [partisan] litmus test in the selection and reappointment processes for judges." (424) Unlike South Carolina, however, Virginia does not record its legislative voting behavior, resulting in no public record showing which candidate individual legislators supported. (425) This lack of public accountability results in lengthy vacancies to occur and limits the availability of qualified candidates. (426)

In 2008, the Virginia General Assembly was unable to elect judges for more than a dozen vacancies, including openings on the Virginia Supreme Court. (427) Democratic Governor Timothy Kaine, who was skillful in navigating the political obstacles to election for candidates that he appointed, still had two of his nominations blocked by Republicans, thereby rendering the judicial selection process ineffective. (428) The 2008 election was not an anomaly in Virginia. In 2007, "when deadlocked legislators adjourned without appointing three statewide judges, Gov[ernor] Timothy M. Kaine had to ... fill the posts." (429) These contemporary events are a continuation of an ingrained pattern in Virginia. Starting in 1998, with the Republicans holding a slight majority of the House of Delegates, a partisan fight started when Republican Thelma Drake effectively blocked the appointment of a Democratic judicial candidate, Joseph A. Leafe, to the Norfolk Circuit Court. (430) When the battle ended, thirty judicial posts were left vacant and the decisions to fill these posts were delayed for months. (431)

The Virginia court controversies gained the attention of the public. In 2009, more than two hundred Virginia residents billing themselves as the "Pitchfork Rebellion," announced that they were frustrated with the way that Virginia state judges are selected. (432) The group organized itself to oppose the appointment of judicial nominees, arguing that the public should have more influence regarding who sits on the bench. (433) The group's plan included "public participation in judicial selection from start to finish, hearings that are open to the public[,] and anonymity or immunity for those who testify against sitting judges." (434)

In an editorial, the Richmond Times Dispatch called on the state to adopt a merit-based system for appointing judges to the bench. (435) The editorial conceded that Virginia's judiciary is staffed by competent people who perform their jobs well; however, it felt that the existing method of choosing judges "breaks down" because the General Assembly does not always support a nominee. (436) The paper added that "persistent squabbling [also] has the potential to deter qualified candidates from seeking judgeships." (437) A merit-based system, the paper stated, would have the governor submit a list of names to the Assembly for confirmation to judicial seats, thereby promoting cooperation between the executive and legislative branches. (438) In a defeatist conclusion, the paper stated that its commentators "would not bet a paycheck that this reform will be adopted soon." Nevertheless, it asked the General Assembly "to do its job." (439)

III. CONCLUSION: WHEN PICKING THE SUPREMES MONEY, POLITICS, AND INFLUENCE WILL FIND ITS WAY

In the controversial United States Supreme Court decision Bush v. Gore, Associate Justice John Paul Stevens opined that, "[a]lthough we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the Judge as an impartial guardian of the rule of law." (440) In the same decision, Justice Stephen G. Breyer warned "[w]e run no risk of returning to the days when a President (responding to this Court's effort to protect the Cherokee Indians) might have said, 'John Marshall has made his decision; now let him enforce it!' ... But we do risk a self-inflicted wound--a wound that may harm not just the Court, but the Nation." (441) Justices Stevens' and Breyer's remarks reflect a critical concern of the Court: its legitimacy. (442)

A court that wields neither the power of the sword nor the purse depends upon its legitimacy with the American public to encourage implementation and consumption of its policy decisions. (443) To insure the public's acceptance of their rulings on important questions, the courts of this country engage in rituals that are designed to enhance the public's perception of its legitimacy. (444) "Judges wear robes, everyone rises when they enter the courtroom, and they are addressed as 'Your Honor.'" (445) The warnings of the dissenting Justices in Bush v. Gore suggests that if the public's perception of the Supreme Court's legitimacy is destroyed then the executive and the legislative branches of government will be buoyed to ignore the Court's policy directives; if this happens, the Court will be rendered powerless. (446) This analysis of the United States Supreme Court's source of power is equally applicable to state courts. There is a risk that, if the public loses faith in the manner in which judges are elected due to a perception that connections, rather than merit, are the primary qualifications for securing a judgeship, the legitimacy of state supreme courts are likewise threatened. (447)

In the movie based on Isak Dinesen's classic novel Out of Africa, (448) there is a moment in the film where the protagonist, Karen Blixen, recounts an encounter with one of the Kikuyu, the native inhabitants of the farm she owned. In order to construct a pond, Blixen needed to dam a stream running through her property. (449) Before she begins construction of the dam, she is warned by one of the Kikuyu that "this water must go home to Mombasa.... This water belongs to Mombasa." (450) Blixen paternalistically ignores the Kikuyu's statement as the superstitious belief of an uninformed community and continues the task of damming the stream. (451) In the end, her farm failed. (452) Blixen came full circle to recognize that her arrogance--her belief that her perception was more viable than what the evidence supported, or what those more experienced warned her against--led to her failure. (453) Just as the Kikuyu warned, the water indeed found its way back to Mombasa. (454) Money, politics, and influence are just like water to the river--they belong to each other. Just as no man can control the forces of nature, no statute can control these forces in a purely political system. Money, politics, and influence will find their way into any elective process, and South Carolina's and Virginia's schemes for picking judges are elective processes. (455)

In South Carolina and Virginia, elite politicians and jurists have decided that they are the best suited to determine who should serve as judges of the courts throughout their respective states. Their rationale is that the current systems are the best for keeping the states free of the carnival atmosphere that comes with a public election. (456) To support the argument that South Carolina's system for choosing judges is superior to a public election, a South Carolina Supreme Court Justice showed sample commercials at a continuing legal education seminar from an Alabama judicial election cycle, followed by a PowerPoint slide quoting Federalist No. 78. (457) What he failed to also post from Federalist No. 78, however, was Hamilton's preferred method of selecting judges: presidential appointment with senate approval, not legislative elections. (458)

South Carolina legislators and judges consistently argue that the legislative method of judicial election is the best way to keep money and politics out of judicial elections, but they do not support this argument with any qualitative or quantitative data. (459) Periods of time when the system has worked moderately well in selecting qualified judges are, at best, byproducts of happenstance, not the results of a well- designed selection method. (460) It is a myth to allege that legislative election systems take the politics out of judicial selection and promote the rule of law. (461) If the predominant argument for maintaining the present method of selecting judges is the removal of money and politics from the process, then the campaign of Judge Donald Beatty is evidence that the system cannot prevent those with money from influencing judicial elections whenever and however they want.

A second rationale for maintaining judicial legislative election systems centers on the false argument that the states have a Hobson's choice: since public elections are not an option, the only viable option is legislative elections. Former Chief Justice A. Lee Chandler presented this argument at a breakfast meeting of the South Carolina Bar Association on June 4, 1994:

Election of judges by the General Assembly represents a middle position between the extremes of popular election on the one hand, and the one-person governor appointments on the other. Rome was not built in a day, but it was built. All the needed adjustments in South Carolina's present system will not be made in a day, but they will be made (462)

This rationale continues today, and is grounded in a fiction that South Carolina has a true "merit plan." (463) The reality is that South Carolina's current judicial selection method is an aberration that borrows a part of the plan, the screening commission, to create the illusion of impartiality, when it is in fact a cover for a pure elective system where the only eligible voters are 170 political elites. (464) While there has been some improvement to the South Carolina system since the 1996 reform, only a more sophisticated system of political favoritism has emerged. Martin Driggers argues that the creation of the JMSC potentially cured the defects of the old system; however, in reaching this conclusion he focused solely on the creation of the JMSC while ignoring the legislative election process. (465)

Beyond the United States Supreme Court, state supreme courts are the foremost policy makers in the judicial system. (466) When a threat to judicial tenure exists due to anxiety over legislative disfavor, judges may be reluctant to make unpopular decisions in cases coming before them. This was evidenced during the era of civil rights litigation, where a fear of reprisal at the polls prevented state judges from taking bold legal positions regarding the rights of disenfranchised citizens. (467) The case of Segars-Andrews demonstrates that the threat of reprisal also exists in legislative election systems. (468)

South Carolina's and Virginia's judicial election methods have too many structural defects that have led to the contemporary problems previously discussed, as well as problems that loom over the horizon, as the states continue the move toward more diverse and complex populations. (469) Legislative judicial elections are tools of the legislatures that allow these actors to ignore the interest of the public, to reward the patronage interest of powerful legislators, and, in the case of South Carolina, to vest too much control into the hands of powerful state Legislators in a one-party state. (470) The presence of the Judicial Merit Selection Commission, and to a lesser extent the Judicial Advisory Commission in Virginia, is used to support the appearance of a neutral and fair selection method that systematically chooses between highly qualified judicial candidates. While the administrative works of the states' commissions are thorough and professional, (471) the reality is that these bodies are not independent of legislative control, and the processes are not democratic. (472)

Critics like Bonneau, Hall, Hannsen, and Fitzpatrick raise viable issues that should be considered; however, Hamilton's reasoning carries substantial weight when he explains that the reason for life tenure for the United States Supreme Court is because "the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws." (473) Hamilton was keenly aware of the need to insulate the judiciary from the pressure of public elections in order to avoid the harm caused when a judge makes a decision based on his ability to win reelection, rather than the appropriate legal outcome for a case. (474)

The best strategy to thwart the debilitating impact of special interests, politics and money on judicial elections is to construct a transparent selection method that will allow money to flow in an open and orderly manner. (475) The benefit will be a more diverse judiciary that better reflects the demographic make-up of its citizens. Otherwise "[i]f power is not immediately derived from the people in proportion to their numbers, we may make a paper confederacy, but that will be all." (476) These courts are vital institutions; therefore, it is incumbent upon the legislatures of all states to consider a more open and responsive system that best represents the interests of the voting public, and not just the interests of powerful legislators or those who can influence them. The best system available to ensure an independent and impartial judiciary is a true merit selection system. (477) The fact that a "merit plan" produces a more qualified bench (478) has served as the catalyst for twenty states to adopt this plan. (479) Legislatures in all states that allow for the public or legislative election of the justices of their high courts, or the judges of their other courts, should reconsider their current methods of selecting judges, and move toward the model endorsed by the American Bar Association and recommended by most contemporary scholars and jurists: the "merit plan."

APPENDIX 1

Supreme Court Vote Tally

Date: 5/24/2007

Supreme Court Vote Tally

May 24, 2007--As you know, the SC General Assembly elected a new State Supreme Court Justice yesterday. Over the objections of a diverse coalition of organizations--including SCRG, Conservatives in Action, BIPEC-PAC, SC Club for Growth, Palmetto Family Alliance and the SC Civil Justice Coalition--a number of "conservatives" joined with the liberals to elect former Democrat lawmaker Don Beatty.

There have been a number of calls asking for the roll call vote. Below is the breakdown of how Senators and Representatives voted on the deciding ballot. Republicans are noted in red while Democrats are in black. We encourage you to contact those Republicans who voted for Hr. Beatty and ask them why they supported a known liberal for this extremely important position. Likewise, you are also encouraged to contact and thank those legislators who voted to uphold the principles upon which they were elected by supporting the obvious conservative candidate in race.
Final Roll Call (from the 5/23/07 House Journal)
The following named Senators voted for Beatty:

Anderson           Drummond        Ford
Hawkins            Hutto           Jackson
Land               Lourie          Malloy
Matthews           McGill          Moore
O'Dell             Patterson       Pinckney
Reese              Scott           Sheheen
Williams
                        Total--19

The following named Senators voted for Hearn:

Alexander          Cleary          Elliott
Hayes              Knotts          Leatherman
Rankin             Vaughn

                        Total--8

The following named Senators voted for Williams:

Bryant             Campsen         Courson
Cromer             Fair            Grooms
Martin             McConnell       Peeler
Ritchie            Ryberg          Setzler
Thomas             Verdin

                        Total--14

The following named Representatives voted for Beatty:

Agnew              Alexander       Allen
Anderson           Anthony         Bales
Bowers             Branham         Brantley
Breeland           G. Brown        R. Brown
Cato               Ceips           Chellis
Clyburn            Cobb-Hunter     Coleman
Cooper             Davenport       Delleney
Funderburk         Gambrell        Govan
Hart               Harvin          Haskins
Hayes              Hodges          Hosey
Howard             Jefferson       Jennings
Kelly              Kennedy         Knight
Littlejohn         Mack            McLeod
Miller             Mitchell        Moody-Lawrence
Moss               Neal (Joe)      Neal (Jimmy)
Neilson            Ott             Parks
Perry              Rutherford      Sandifer
Scott              Sellers         Smith (Fletcher)
Smith (Roland)     Smith (Doug)    Stavrinakis
Talley             Vick            Walker
Weeks              Whipper         White
Williams           Young

                        Total--65

The following named Representatives voted for Hearn:

Barfield           Battle          Brady
Clemmons           Edge            Gullick
Hardwick           Kirsh           Lucas
Scarborough        Shoopman        Simrill
Smith (Murrell)    Thompson        Umphlett
Viers              Witherspoon

                        Total--17

The following named Representatives voted for Williams:

Ballentine         Bannister       Bedingfield
Bingham            Brown           Chalk
Cotty              Crawford        Dantzler
Duncan             Frye            Hagood
Haley              Hamilton        Harrell
Harrison           Herbkersman     Hinson
Hiott              Huggins         Leach
Limehouse          Loftis          Lowe
Mahaffey           Merrill         Mulvaney
Owens              Pinson          Pitts (Ted)
Pitts (Mike)       Rice            Skelton
Smith (Don)        Smith (Garry)   Spires
Stewart            Taylor          Toole
Whitmire

                        Total--40

                   RECAPITULATION

Total number of Senators voting 41
Total number of Representatives voting 122
Grand Total 163
Necessary to a choice 82
Of which Beatty received 84
Of which Hearn received 25
Of which Williams received 54

Whereupon, the PRESIDENT PRO TEMPORE announced that the Honorable
Donald W. Beatty was duly elected for the term prescribed by law.


APPENDIX 2

JUDICIAL MERIT SELECTION COMMISSION MEMBERS

January 11, 2011

Senate Appointees:

Senator Glenn F. McConnell (2008)

(Room 101) Post Office Box 142

Columbia, SC 29201

803-212-6610

Senator John M. "Jake" Knotts, Jr. (2008)

(Room 303) Post Office Box 142

Columbia, SC 29201

803-212-6350

Bus: 500 W. Dunbar Rd., W. Columbia, SC 29169

Senator Floyd Nicholson (2009)

(Room 610) Post Office Box 142

Columbia, SC 29201

803-212-6040

(864) 223-0400-Office

Professor Emeritus John P. Freeman (2001)

2329 Wilmot Ave.

Columbia, SC 29205

803-254-4667-Hm

Ms. Amy Jonhson McLester (2001)

313 Cool Springs Drive

Camden, SC 29020

803-432-3766-Hm

House Appointees:

Representative F. G. Dellaney, Jr. (1997)

532-C Blatt Building, Capitol Complex

Columbia, Sc 29201

803-734-3074

Bus: 128 Center St., Chester, SC 29706

803-281-221-Office

Representative Alan D. Clemmons (2008)

518-A Blatt Building, Capitol Complex

Columbia, SC 29201

803-734-2994

Bus: 610 18th Ave., North Myrtle Beach, SC 29577

843-448-4246-Office

Representative David J. Mack, III (2008)

328-D Blatt Building, Capitol Complex

Columbia, SC 29201

803-734-3192

Bus: 4340 Evanston Blvd., N. Charleston, SC 29418

843-225-4869-Office

John Davis Hare11, Esq. (2007)

Harrell Law Firm, P.A.

2000 Sam Rittenberg, Blvd., Ste. 2001

Charleston, SC 29404

843-766-4700-Office

H. Donald Sellers, Esq. (2007)

Hnynsworth Sinkler Boyd P.A.

P.O. Box 2048

Greenville, SC 29602

864-240-3232-Office
Senate Counsel:   Jane O. Shuler, Chief Counsel, 803-212-6629 (T-Th)
                  Bonnie Anzelmo, 803-212-6408
                  Paula G. Beason, 803-212-6636
                  J.J. Gentry, 803-212-6306

House Counsel:    Emama Dean, 843-734-3120
                  Patrick G. Dennis, 803-734-3120
                  Bradley S. Wright, 803-734-3125


APPENDIX 3

Lawyers running for a judgeship in South Carolina begin the process by sending a letter to Shuler specifically identifying which seat they are running for. A candidate cannot run for multiple seats. The Commission will send the candidate a flash drive and a letter explaining all of the "Applicant" documents: Policies and Procedures manual, relevant statutes, and the rules of campaigning. A candidate has thirty days to complete package. If a package is not complete the Commission cannot accept the package, except for letters of reference. The candidate is then assigned a screening attorney who prepares them for the process. Edited documents of the information sent to the Commission are also sent to the South Carolina Bar and to the Citizens Committees. The information edited is privacy information like social security numbers and other financial information.

Once the candidates return the information the Commission begins their investigation of candidates. The investigation includes phone interviews with members of the community and candidate interviews with Screening and citizens committee. Candidates also take a test. Everyone running for a judgeship take the test. The test is graded before a public hearing is held. The candidates are told what their grades are but not what others got. If a candidate does not do well on the test they will be asked about in public hearing.

The test is written by Shuler and is reviewed by a second person who is "learned: in the law. Shuler goes back one year in the advance sheets to develop the test from significant cases. The test is in the form of true/false questions and short answer. An anonymous person grades the test. Only the Commission knows who the grader is and what score is.

A week prior to public heating Commission staff prepare a briefing paper on the candidate, and will flag any concerns that came up during interviews. The Candidates are informed of any findings and allowed to respond formally. The public hearings can last one to four days and are scheduled to allow twenty minutes per candidate; however, the Commission generally goes over the time allotment. The hearing is open to any interested member of the public; however, the Commission will go into Executive Session to be advised on information in credit reports, financial statements, grievances that were filed against the candidate but were later dismissed, and individual thoughts about the candidates. The screening attorneys have standard questions and specific questions. Commission members will ask question as well. Generally, these questions revolve around issues of work ethics and ideas. At this stage of the process the candidates have gone through four interviews--the South Carolina Bar interviews candidates and conducts an independent investigation, the Citizens Committees, the Screening Committee, and finally the public hearing. At the conclusion of the hearing Commission members vote. (480)

(1) THE FEDERALIST NO. 78,469 (Alexander Hamilton) (Charles R. Kesler ed., 1999).

(2) See id.; LEE EPSTEIN, JACK KNIGHT & OLGA SHVETSOVA, SELECTING SELECTION SYSTEMS 6 (2000), available at

http://epstein.usc.edu/research/conferencepapers.2000SciStudy.pdf.

(3) Todd Edwards, Judicial Selection in Southern States, THE SOUTHERN OFFICE OF THE COUNCIL OF STATE GOVERNMENTS" REGIONAL RESOURCE, Feb. 2004, at 1, 2-3, available at http://www.csg.org/knowledgecenter/docs/slc-0403-JudicialSelection.pdf.

(4) DANIEL R. PINELLO, THE IMPACT OF JUDICIAL-SELECTION METHOD ON STATE-SUPREME COURT POLICY: INNOVATION, REACTION, AND ATROPHY 136 (1995).

(5) Id. at 4 (noting that the legislative selection of the judiciary has escaped the attention of academia).

(6) See Bradley C. Canon, The Impact of Formal Selection Processes on the Characteristics of Judges--Reconsidered, 6 LAW & SOC'Y REV. 579, 580 (1972).

(7) Id.

(8) Id.

(9) See Melinda Gann Hall, State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform, 95 AM. POL. SCI. REV. 315, 316 (2001).

(10) EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 9-10.

(11) F. Andrew Hanssen, On the Politics of Judicial Selection: Lawyers and State Campaigns for the Merit Plan, 110 PUB. CHOICE 79 (2002).

(12) Gerald N. Rosenberg, Judicial Independence and the Reality of Political Power, 54 REV. POL. 369, 369 (1992) (quoting Charles A. Horsky, Law Day: Some Reflections on Current Proposals to Curtail the Supreme Court, 42 MINN. L. REV. 1105, 1111 (1958)).

(13) Id.

(14) Id. at 370-71.

(15) MATTHEW J. STREB, RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS 8 (Matthew J. Streb ed., 2007).

(16) Id.

(17) Id. at 9.

(18) Id.

(19) Id. at 8-9

(20) Id.

(21) STREB, supra note 15, at 9.

(22) Id.

(23) Id.

(24) See EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 9 (noting that this is a "standard story" that explains the three historical explanations for institutional change).

(25) STREB, supra note 15, at 9.

(26) Id.

(27) Id.

(28) Id.

(29) Id. at 9-10.

(30) Id at 10.

(31) EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 11; see also STREB, supra note 15, at 10.

(32) Edwards, supra note 3, at 1-2.

(33) EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 11.

(34) Id. at 7,

(35) STREB, supra note 15, at 10.

(36) Id.

(37) Id.

(38) EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 2.

(39) Edwards, supra note 3, at 2-3.

(40) Judicial Selection in the States: Appellate and General Jurisdiction Courts, AMERICAN JUDICATURE SOCIETY (2010), http://www.judicialselection.us/uploads/documents/Judicial_Selection_Charts_1196376173077.pdf (last visited Nov. 25, 2011) (listing Alaska, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Iowa, Maryland, Massachusetts, Nebraska, New Hampshire, New Mexico, Rhode Island, Utah, Vermont, and Wyoming).

(41) Id. (listing Arizona, Florida, Indiana, Kansas, Missouri, New York, Oklahoma, South Dakota, and Tennessee).

(42) Id. (listing Alabama, Illinois, Louisiana, Ohio, Pennsylvania, Texas, and West Virginia).

(43) Id. (listing Arkansas, Georgia, Idaho, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nevada, North Carolina, North Dakota, Oregon, Washington, and Wisconsin).

(44) Id. (listing California, Maine, and New Jersey).

(45) Id. (listing Virginia and South Carolina).

(46) Edwards, supra note 3, at 2.

(47) Id.

(48) Id.

(49) See Owen G. Abbe & Paul S. Herrnson, Public Financing for Judicial Elections? A Judicious Perspective on the ABA 's Proposal for Campaign Finance Reform, 35 POLITY 535, 540 (2003).

(50) Id. at 541.

(51) Id. at 540.

(52) Id. at 542.

(53) STREB, supra note 15, at 63-64.

(54) Abbe & Herrnson, supra note 49, at 542.

(55) See Larry T. Aspin & William K. Hall, Friends and Neighbors Voting in Judicial Retention Elections: A Research Note Comparing Trial and Appellate Court Elections, 42 W. POL. Q. 587, 587-88 (1989).

(56) Id.

(57) Id. at 588.

(58) Edwards, supra note 3, at 2.

(59) Id.

(60) Id.

(61) See id.

(62) Martin Scott Driggers, Jr., South Carolina's Experiment: Legislative Control of Judicial Merit Selection, 49 S.C.L. REV. 1217, 1217-20 (1998).

(63) EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 8.

(64) Sarah J. Morath, Judicial Campaign Financing: An Ever Present Threat to Judicial Independence 10 (2009) (unpublished paper), available at http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=sarah_morath.

(65) EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 7.

(66) Id. at 7-8.

(67) Harold J. Laski, The Technique of Judicial Appointment, 24 MICH. L. REV. 529, 533, 538 (1926); see also EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 7-8.

(68) Laski, supra note 67, at 533, 538.

(69) Id. at 538.

(70) EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 8.

(71) Id.

(72) Id.; see also, Hanssen, supra note 11, at 81.

(73) EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 8 n.10.

(74) Laurance M. Hyde, The Missouri Plan for Selection and Tenure of Judges, 39 J. CRIM. L. & CRIMONOLOGY 277, 280 (1948).

(75) EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 9.

(76) Hyde, supra note 74, at 280.

(77) But see EPSTEIN, KNIGHT & SHVETSOVA, supra note 2, at 9 (stating that it is important to consider critiques of this story because of three shortcomings in its telling, which are: "the omission of politics, the failure to consider political motives, and the lack of systemic empirical support").

(78) Hanssen, supra note 11, at 81.

(79) Edwards, supra note 3, at 2-3.

(80) Canon, supra note 6, at 580.

(81) Hall, supra note 9, at 316. But see Hanssen, supra note 11, at 85 (noting that lawyers and bar associations have reasons other than the administration of justice in promoting merit plans).

(82) Canon, supra note 6, at 580.

(83) Edwards, supra note 3, at 2.

(84) Id. at 2-3.

(85) Paul D. Carrington & Barbara E. Reed, Choosing Justice: Reforming the Selection of State Judges: The Report of the Citizens .[or Independent Courts Task Force on Selecting State Court Judges, in UNCERTAIN JUSTICE: POLITICS IN AMERICA'S COURTS 77, 93 (2000), available at http://www.constitutionproject.org/pdf/choosing_justice.pdf.

(86) Id.

(87) Id. at 88.

(88) Id.

(89) Id. at 89.

(90) Id.

(91) Hall, supra note 9, at 316 (citing Henry R. Glick & Craig Emmert, Selection Systems and Judicial Characteristics: The Recruitment of State Supreme Court Justices, 70 Judicature 228 (1987)) (concluding that the professional credentials of judges are quite similar regardless of the method of selection).

(92) Hall, supra note 9, at 316.

(93) Vincent Martin Bonventure, Judicial Activism, Judges' Speech, and Merit Selection: Conventional Wisdom and Nonsense, 68 ALB. L. REV. 557, 560 (2005).

(94) CHRIS W. BONNEAU & MELINDA GANN HALL, IN DEFENSE OF JUDICIAL ELECTIONS 17 (2009).

(95) Id. at 17, 138.

(96) Id. at 138.

(97) Id.

(98) Hanssen, supra note 11, at 87, 93.

(99) Id.

(100) See id. (noting that lawyers and bar associations are self-interested in promoting this plan; however, this conclusion supports the historical rationale for the plan because it promotes judicial independence. The fact that the public will seek more access to a court when the outcome of a controversy is not prejudged also supports arguments made in favor of the plan).

(101) Brian T. Fitzpatrick, The Politics of Merit Selection, 74 Mo. L. REV. 675 passim (2009).

(102) Id, at 690-91.

(103) Id.

(104) Id. at 691.

(105) Hanssen, supra note 11, at 84 (citing Glick & Emmert, supra note 91, at 117) ("[W]ell organized political parties.., try to prevent court reorganization and centralization promoted by political competitors in state bar associations and the judicial branch.").

(106) Carrington & Reed, supra note 85, at 89.

(107) STREB, supra note 15, at 205.

(108) Id.

(109) Id.

(110) Sandra Day O'Connor, A Fair, Impartial and Independent Judiciary, NAT'L VOTER, Feb. 2008, at 7, available at http://www.lwv.org/files/A%20Fair%2C%20Impartial%20and%20Independent%20Judiciary%20-%20Justice%200%27Connor%20-%202008.pdf.

(111) Id. at 8.

(112) Id. at 9.

(113) See Carrington & Reed, supra note 85, at 77-81 & 89.

(114) See Carl W. Tobias, Reconsidering Virginia Judicial Selection, 43 U. RICH. L. REV. 37, 37, 39 (2008). Scholars often refer to these methods as legislative appointments. I argue that they are legislative elections because the candidates actually campaign for the votes of legislators. See Canon, supra note 6, at 583.

(115) See Judicial Selection: Report--Final, CONNECTICUT GENERAL ASSEMBLY OFFICE OF PROGRAM REVIEW AND INVESTIGATIONS, ch. IV (2000), http://www.cga.ct.gov/pri/archives/2000jsreportchap4.htm.

(116) See Interview with Glen Halva-Neubauer, Dana Professor of Political Science, Furman Univ. (July 5, 2011).

(117) Tobias, supra note 114, at 37.

(118) Id. at 40.

(119) Id.

(120) Id.

(121) Id.

(122) Id.

(123) Tobias, supra note 114, at 40.

(124) See PINELLO, supra note 4, at 4.

(125) Tobias, supra note 114, at 42. The fourteen member committee was comprised of numerous former Democratic and Republican leaders. Id.; see also, J. Amy Dillard, Separate and Obedient: The Judicial Qualification Missing from the Job Description, 38 CUMB. L. REV. 1, 3-5 (2008).

(126) Dillard, supra note 125, at 5.

(127) Id.

(128) Id.

(129) Id.

(130) See id. at 2-3; see also PINELLO, supra note 4, at 41.

(131) D. Alan Rudlin, Selecting Judges: The ABA View, and the Virginia Experience, 3 CHARLESTON L. REV. 475, 477 (2009).

(132) Dillard, supra note 125, at 3.

(133) Rudlin, supra note 131, at 478.

(134) Dillard, supra note 125, at 2.

(135) PINELLO, supra note 4, at 41 ; see also Rudlin, supra note 131, at 477.

(136) PINELLO, supra note 4, at 41; see also Rudlin, supra note 131, at 477.

(137) See Barry Edmond Hambright, The South Carolina Supreme Court 102 (1971) (unpublished Ph.D. dissertation, University of South Carolina).

(138) Id. at 103.

(139) See AT FREEDOM'S DOOR: AFRICAN AMERICAN FOUNDING FATHERS AND LAWYERS IN RECONSTRUCTION SOUTH CAROLINA 15 (James Lowell Underwood & W. Lewis Burke, Jr. eds., 2000).

(140) Id. at 16; see generally H. Hale Bellot, Presidential Address: The Leighs in South Carolina, in 6 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY 161, 161-87 (5th ser., 1956) (noting that appointments of chief justices for South Carolina from England was one of the primary means of alienating the sentiments of the people of the province from their love to the mother country).

(141) Kevin Eberle, Judicial Selection in South Carolina: Who Gets to Judge?, S.C. LAW., May/June 2002, at 20, 22.

(142) See AT FREEDOM'S DOOR: AFRICAN AMERICAN FOUNDING FATHERS AND LAWYERS IN RECONSTRUCTION SOUTH CAROLINA, supra note 139, at 16. The arguments supporting gubernatorial selection were that legislative selection made the judges too dependent on the legislature and involved too many people in the process. Id. The argument made in support of popular election was that it made the judges responsible to the people fostering "equitable justice." Id. at 17.

(143) Rick Brundrett, Legislative Role in Judicial Screening Questioned, THE NERVE, Feb. 18, 2010, http://thenerve.org/news/2010/02/18/legislative-role-in-judicial-screeningquestioned; cf. Canon, supra note 6, at 584 ("State legislative service as a prior office is most rewarding in states where the legislature elects the judiciary."). With specific reference to South Carolina, Professor Canon's study found that the proportion of justices who are former legislators was twice as many as in other systems. Id. He concluded that the prior legislative service is advantageous to securing a judgeship with this judicial election method. Id.

(144) See generally S.C. Const. art. V, [section] 27 (forming the Judicial Merit Selection Commission). Section 27 is as follows:
   In addition to the qualifications for circuit court and court of
   appeals judges and Supreme Court justices contained in this
   article, the General Assembly by law shall establish a Judicial
   Merit Selection Commission to consider the qualifications and
   fitness of candidates for all judicial positions on these courts
   and on other courts of this State which are filled by election of
   the General Assembly. The General Assembly must elect the judges
   and justices from among the nominees of the commission to fill a
   vacancy on these courts. No person may be elected to these judicial
   positions unless he or she has been found qualified by the
   commission. Before a sitting member of the General Assembly may
   submit an application with the commission for his nomination to a
   judicial office, and before the commission may accept or consider
   such an application, the member of the General Assembly must first
   resign his office and have been out of office for a period
   established by law. Before a member of the commission may submit an
   application with the commission for his nomination to a judicial
   office, and before the commission may accept or consider such an
   application, the member of the commission must not have been a
   member of the commission for a period to be established by law.


Id.

(145) Id. See also Dillard, supra note 125, at 12-15. The most significant distinction between the South Carolina and Virginia methods is that the JMSC is constitutionally required in South Carolina, while the Virginia Commission was created by Republican members of the legislature and has no constitutional or statutory power. See Eberle, supra note 141. Also, South Carolina has no provision that allows the Governor to appoint judges in the event the legislature fails to act. See id.

(146) Eberle, supra note 141, at 22.

(147) Driggers, supra note 62, at 1230; see also Eberle, supra note 141, at 22-23.

(148) Brundrett, supra note 143; see also Driggers, supra note 62, at 1231.

(149) Driggers, supra note 62, at 1231.

(150) Id.

(151) Brundrett, supra note 143. Considering how Larry Martin, the recently minted chair of the Senate Judiciary Committee, appointed himself to the JMSC to fill the vacant seat of Glen McConnell, a tradition of self-appointment appears to have emerged. See Sen. Martin announces appointment to Judicial Merit Selection Commission, S.C. BAR (Mar. 27, 2012), http://www.scbar.org/MemberResources/Publications/EBlast/EBlastArchives/ViewArchive/ArticleId/1235/March-27-2012.aspx.

(152) See generally S.C. CODE ANN. [section] 2-19-10 (B)(1)(a)-(b)(2012).

(153) See Driggers, supra note 62, at 1231.

(154) See S.C. Const. art. V, [section] 27.

(155) See Segars-Andrews v. Judicial Merit Selection Comm'n, 691 S.E.2d 453, 458 (S.C. 2010).

(156) Brundrett, supra note 143.

(157) Driggers, supra note 62, at 1232.

(158) Id.

(159) Id. at 1231.

(160) Id.

(161) S.C. CODE ANN. [section] 2-19-120. Section 120 is as follows:

Citizens Committees on Judicial Qualifications; membership; compensation.

(A) The Chairman of the Judicial Merit Selection Commission, upon the advice of the commission, shall select members to serve on Citizens Committees on Judicial Qualifications for each geographic district set by the commission. These committees shall, under the rules adopted by the commission, advise the commission concerning judicial candidates. The committees shall report their findings to the commission in such form as prescribed by the commission.

(B) The members appointed to the Citizens Committees on Judicial Qualifications shall be compensated with an emolument of one hundred dollars per round of screening.

Id.

(162) Methods of Judicial Selection, AMERICAN JUDICATURE SOCIETY, http://www.judicialselection.us/judicial_selection/methods/judicial_nominating_commissions.cfm?state= (last visited Feb. 9, 2012); see also Safeguarding U.S. Democracy: Quest for a More Diverse Judiciary, THE LEAGUE OF WOMEN VOTERS OF SOUTH CAROLINA, http://www.lwv.org/content/safeguarding-us-democracy-quest-more-diverse-judiciary (last visited Nov. 25, 2011).

(163) See Methods of Judicial Selection, supra note 162; Safeguarding U.S. Democracy: Quest for a More Diverse Judiciary, supra note 162.

(164) See S.C. CODE ANN. [section] 2-19-10(B)-(D). Section 10, subsection (B) through (D) is as follows:

Judicial Merit Selection Commission; appointment; qualifications; term.

...

(B) Notwithstanding any other provision of law, the Judicial Merit Selection Commission shall consist of the following individuals:

(1) five members appointed by the Speaker of the House of Representatives and of these appointments:

(a) three members must be serving members of the General Assembly; and

(b) two members must be selected from the general public;

(2) three members appointed by the Chairman of the Senate Judiciary Committee and two members appointed by the President Pro Tempore of the Senate and of these appointments:

(a) three members must be serving members of the General Assembly; and

(b) two members must be selected from the general public.

(C) In making appointments to the commission, race, gender, national origin, and other demographic factors should be considered to ensure nondiscrimination to the greatest extent possible as to all segments of the population of the State.

(D) The term of office of a member of the commission who is not a member of the General Assembly shall be for four years subject to a right of removal at any time by the person appointing him, and until his successor is appointed and qualifies. A member of the commission who is a serving member of the General Assembly shall serve for the term of office to which he has been elected.

Id. (emphasis added).

(165) S.C. CODE ANN. [section] 2-19-120.

(166) Telephone interview with Jane Shuler, Chief Counsel, Judicial Merit Screening (Apr. 3, 2011).

(167) Id.

(168) Id.

(169) Methods of Judicial Selection, supra note 162.

(170) S .C. CODE ANN. [section] 2-19-120.

(171) Id.

(172) S.C. CODE ANN. [section] 2-19-70(D) ("No member of the General Assembly may trade anything of value, including pledges to vote for legislation or for other candidates, in exchange for another member's pledge to vote for a candidate for judicial office.").

(173) See Eberle, supra note 141, at 25 (noting that advisory opinions of the Judicial Merit Screening Commission addressed practices that occurred in 1999 that the Commission viewed as engaging in banned activities).

(174) Id. at 22.

(175) Id. at 22-23.

(176) Id. at 23.

(177) See id. (noting that the President of the Bar appoints the members of this Commission).

(178) Interview with Jane Shuler, supra note 166.

(179) Id.

(180) H. 3147, 119th Gen. Assemb. (S.C. 2007). Pending South Carolina House Bill 3147 would amend Code of Laws of South Carolina 1976 [section] 2-19-80 relating to the nominations and qualification of candidates by the Judicial Merit Selection Commission to the General Assembly and the provision that the names of all candidates, who are constitutionally and statutorily qualified, must be submitted to the General Assembly, rather than the names of the three candidates the Commission deems best qualified. Id.

(181) Interview with Jane Shuler, supra note 166.

(182) Id.

(183) Id.

(184) Id.

(185) Id.

(186) Id.

(187) Interview with Jane Shuler, supra note 166.

(188) Eberle, supra note 141, at 24 (quoting S.C. CODE ANN. [section] 2-19-80).

(189) Eberle, supra note 141, at 25.

(190) Id.

(191) See interview with Jane Shuler, supra note 166.

(192) See Aphrodite Konduros, Assoc. Judge, S.C. Court of Appeals, Address at the Greenville County Bar Year End CLE (Feb. 11, 2011).

(193) The identities of the people interviewed, who have requested, remain anonymous. Records of these interviews are on file with the author.

(194) Representative David Weeks, S.C. Congressman, Address at The League of Women Voters of South Carolina Conference: Ensuring Judicial Independence and Diversity (Oct. 8, 2010). Weeks also commented on the diversity among the judiciary. Id. He stated the need for the State to embrace diversity in all areas: "We have failed miserably in that regard. She's alright if she wants to be on the family court but not the circuit court." Id.

(195) Id.

(196) Id.

(197) Id.

(198) Interview with anonymous elected judge (Apr. 13, 2011).

(199) Id.

(200) Id.

(201) Id.

(202) Id.

(203) Id.

(204) Interview with anonymous elected judge, supra note 198.

(205) Id.

(206) Konduros, supra note 192 (referencing the fact that the only available parking for nonlegislators is metered parking on the streets; therefore, a candidate has to be prepared to feed these meters every two hours).

(207) Id.

(208) Id.

(209) Id.

(210) Id.

(211) Id.

(212) Konduros, supra note 192.

(213) Id.

(214) Id.

(215) Id.

(216) Id.

(217) Id.

(218) Konduros, supra note 192.

(219) Id.; see also telephone interview with anonymous pre-reform judicial candidate (Jan. 28, 2011) (sharing, as in most candidate interviews, that the garage was the part of the process that remains the most vivid memory); cf. Andy Brack, Outside groups thwart real justice in judicial elections, S.C. STATE HOUSE REPORT (May 20, 2007), http://statehousereport.com/columns/07.0520.justice.htm ("Another big problem in the process is the daily line-up. As a judgeship vote approaches, candidates line legislative walkways just to be seen by the state's 170 lawmakers. It's not pretty. Candidates struggle to press flesh and get brief 'face time' with lawmakers. In addition to being a big waste of time for candidates, it is embarrassing to see them suck up to lawmakers.").

(220) Telephone interview with anonymous pre-reform judicial candidate, supra note 219.

(221) Id.

(222) Id.

(223) Id.

(224) Id.

(225) Id.

(226) Telephone interview with anonymous pre-reform judicial candidate, supra note 219.

(227) Id.

(228) Id.

(229) Id.

(230) See S.C. Const. art. III, [section][section] 2-6 (referencing the fact that there are 46 state Senators and 124 members of the House of Representatives in South Carolina).

(231) Telephone interview with anonymous pre-reform judicial candidate, supra note 219.

(232) Id.

(233) Id.

(234) Id.

(235) Id.

(236) Id.

(237) Telephone interview with anonymous pre-reform judicial candidate, supra note 219.

(238) Id.

(239) Id.

(240) Id.

(241) Id. "John" also discussed the process of the legislative vote by stating, "When it is time to elect judges, both houses of the legislature are convened. A roll call is taken, and the votes are recorded. Voting continues until someone gets the appropriate majority. This may require several rounds of voting. During the process, candidates will drop out; this allows some legislators to release commitments they may have made to other candidates and vote for a candidate remaining in the pool. Sometimes, candidates are encouraged to drop out." Id.

(242) Jean Hoefer Toal, Address, State of the Judiciary (March 1, 2006).

(243) Roy Schotland, New Challenges to States' Judicial Selection, 95 GEO. L.J. 1077 (2007).

(244) South Carolina Supreme Court, http://www.sccourts.org/supreme/displayJustice.cfm?judgeID=1134 (last visited Nov. 26, 2011).

(245) Cf. Andy Brack, Outside groups thwart real justice in judicial elections, S.C. State House Report (May 20, 2007), available at http://statehousereport.com/columns/07.0520.justice.htm (last visited March 16, 2011).

(246) Cf. Rick Brundrett, Judicial battle likely: Toal Warns of influence from outside special interest, THE STATE, Sept. 17, 2007, at A1.

(247) Interview with Glen Halva-Neubauer, supra note 116 (noting that Aphrodite Konduras, Donald Pieper, and Renee' Josey were competing for a seat on the Court of Appeals).

(248) Id.

(249) Cf. Brack, supra note 245.

(250) South Carolina Supreme Court, supra note 244.

(251) South Carolina State University, Judge Don Beatty, '74, Elected to the Supreme Court of South Carolina, available at http://www.scsu.edu/news_article.aspx?news_id=307 (last visited Nov. 26, 2011).

(252) Id.

(253) Id.

(254) Id.

(255) Interview with Glen Halva-Neubauer, supra note 116.

(256) Id.

(257) Id.

(258) Id.; see also, Brack, supra note 245.

(259) Interview with Glen Halva-Neubauer, supra note 116.

(260) Id.

(261) Id.

(262) Id.

(263) Id.

(264) Id.; see also Interview with anonymous elected judge, supra note 200 (candidates for a state judgeship need a strong sponsor).

(265) Interview with Glen Halva-Neubauer, supra note 116.

(266) Id.

(267) Id.

(268) Id.

(269) Id.

(270) Id.

(271) Interview with Glen Halva-Neubauer, supra note 116.

(272) Bob Dalton, Beatty: Third party groups are 'new face of the Klan, SPARTANBURG HERALD-JOURNAL, June 5, 2008, at A1.

(273) Id. at A12.

(274) Brack, supra note 245.

(275) Id.

(276) Id.

(277) Id.

(278) Id.

(279) FITSNEWS, TV Ad Rocks S.C. Supreme Court Races, available at, http://www.fitsnews.com/2007/05/19/tv-ad-rocks-sc-supreme-court-race/ (last visited August 7, 2012); see also Keith Kelly, Special Interest Atttack Groups, accessed at http://representativekelly.com (last visited February 17, 2011; the site is no longer available). Kelly, who was reelected, posted the following comment and a reference to a newspaper article on his website:
   A couple months ago I wrote an op-ed detailing the special
   interests and attack groups that will be playing in the upcoming
   election. It looks like those groups are already attacking those of
   us who do not cave to their demands. Here is an interesting article
   that ran yesterday in the Spartanburg Herald Journal.... The
   following comment was made in the article: No one has claimed
   responsibility for the calls targeting Kelly, but he has a short
   list of suspects: S.C. Club for Growth, South Carolinians for
   Responsible Government, ReformSC and Conservatives in Action--four
   groups that want to take the state on a hard right turn. They are
   eating their own in an effort to create a Legislature in their
   image, Kelly said.


(280) FITSNEWS, supra note 279; see also South Carolinians for Responsible Government, Supreme Court Vote Tally, available at Appendix 1, initially found at http://www.scresponsiblegov.org (last visited February 17, 2010; the site no longer links to the document); Kirsten Singleton, SAVANNAH MORNING NEWS, available at http://savannahnow.com (last visited February 17, 2011). Kelly and Littlejohn voted for Beatty and Mahaffey voted for Beatty's competition.

(281) FITSNEWS, supra note 279.

(282) FITSNEWS, supra note 279.

(283) Id.; see also Group to Air Ad Highlighting Judicial Candidacy: 'Conservatives In Action Question Beatty's Record,' S.C. HOTLINE, http://schotlinepress.wordpress.com/2007/05/21/group_to_air_ad_highlighting_judicial_candidacy (last visited May 21, 2011).

Liberal judges continue to wreak havoc on America. From banning prayer in schools to legalizing gay marriage to restricting property rights, out-of-control judges have hurt our country.

So how come some South Carolina Republican legislators are supporting a left-wing politician for our state Supreme Court? That's right. Several Spartanburg County lawmakers are reportedly backing former Democrat House member Don Beatty for a vacant seat on the Supreme Court.

As a legislator, Beatty opposed a measure to prohibit public funding of abortion: (1) He also voted against gun rights; (2) opposed tax and spending cuts; and (3) according to a recent judicial evaluation, Judge Beatty scored much lower than the other two candidates.

South Carolina doesn't need an ultra-liberal Democrat partisan on the state Supreme Court. We need somebody who represents South Carolina values.

Call these Spartanburg County legislators today. Tell them to stand up for core conservative principles. Tell them to oppose Don Beatty.

(284) Brack, supra note 245.

(285) Id.; see also Bert Brandenburg, Big Money and Impartial Justice: Can They Live Together?, 52 ARIZ. L. REV. 207, 209 (2010). Special interest groups have increased their involvement in state elections over the past ten years. For instance, in 2000 the U.S. Chamber of Commerce announced that it was increasing its involvement in state supreme court elections by contributing $10 million in states where it felt plaintiffs' lawyers had too much influence. Id.

(286) Brack, supra note 245.

(287) Id.

(288) Gina Smith, Out-of-State Influence in Elections Raises Flags, THE STATE, June 2, 2008, at a8 ("State Representative Bill Sandifer, R-Oconee, said an organization backed by Howard Rich, a New York millionaire, was behind push-polling to residents there that warned of Sandifer's support of the candidacy of a 'liberal judge,' Donald W. Beatty, for the state Supreme Court.").

(289) Id.

(290) Editorial, Unseemly Lobbying, THE SUN NEWS, Sept.18, 2007, available at http://go.galegroup.com.libproxy.furman.edu/ps/i-do?id=GALE%7CA168780649&v=2.1&u=furmanuniv&it=r&p=SPN.SP00&sw=w.

(291) Brundrett, supra note 246, at 1.

(292) Id.

(293) Id.

(294) Dalton, supra note 272, at A12; cf. Linda Casey, Independent Expenditure Campaigns in Iowa Topple Three High Court Justices, FOLLOWTHEMONEY.ORG, (January 10, 2011), http://www.followthemoney.org/press/ReportView.phtml?r=440 (showing that in a recent retention election in Iowa, Casey identifies six special interest groups that also supplied money to defeat three incumbent Supreme Court Justices because of a recent decision on gay marriage);
TABLE 1: Independent Expenditures That Sponsored A "No Vote"
Retention of Iowa Supreme Court Justices, 2010 (7)

Organization                     City, State           Total

National Organization            Washington, DC        $635,628
for Marriage (NOM)

American Family Association's    Tupelo, Mississippi   $171,025
AFA Action Inc. *

Campaign for Working             Arlington, Virginia   $100,000
Families PAC

Family Research Council          Washington, DC        $55,997
Action

Citizens United Political        Washington, DC        $17,823
Victory Fund

Iowa Family Policy               Pleasant Hill, Iowa   $10,178
Center ACTION
                                 Total                 $990,651


see also Anthony Champagne, Interest Groups and Judicial Elections, 34 LOY. L.A. L. REV. 1391, 1402 (2001) (noting that where substantial independent expenditures were involved including a push poll against the incumbent that appears to have been funded by a South Carolina group).

(295) GoUpstateVideo, Supreme Court Justice Don Beatty talks about attack ads, available at http://www.youtube.com/watch?v=7cNyf5QqYbM (last accessed Nov. 13, 2012).

(296) Id.

(297) Id.

(298) Interview with Glen Halva-Neubauer, supra note 116.

(299) South Carolina Legislature, http://www.scstatehouse.gov/member.php?code=0372727228 (last visited Nov. 11, 2012).

(300) Interview with Glen Halva-Neubauer, supra note 116.

(301) Id.

(302) Eberle, supra note 141, at 25; see also Appendix 1.

(303) Interview with Glen Halva-Neubauer, supra note 116.

(304) Id.

(305) Id.

(306) Id.

(307) Id.

(308) Id.

(309) See South Carolinians for Responsible Government, supra note 280.

(310) Interview with Glen Halva-Neubauer, supra note 116.

(311) South Carolinians for Responsible Government, supra note 280.

(312) Id.

(313) Id.

(314) South Carolina Election Results, http://www.scsba.org/voices/General%20Assembly%20Seats%2008.pdf (last visited Nov. 26, 2011) (November 4 General Election Results).

(315) Interview with Glen Halva-Neubauer, supra note 116.

(316) Id.

(317) Id.

(318) Id.

(319) Cf. infra Appendix 1; see also, Spartanburg County Delegation Minutes (May 7, 2007), http://www.spartanburgcounty.org/govt/depts/legdel/docs/Delegation/Minutes/May72007minutes.pdf.

The vote of the members of the Spartanburg County Delegation in 2007were as follows:

Senator Glenn Reese--B

Senator John Hawkins--B

Senator Jim Ritchie--W

Senator Harvey Peeler--W

Representative Harold Mitchell--B

Representative Doug Smith--B

Representative Lanny Little john--B

Representative Scott Talley--B

Representative Keith Kelly--B

Representative Joe Mahaffey--W

Representative Ralph Davenport--B

Representative Bob Walker--B

Representative Mike Anthony--B

Id.

(320) Interview with Glen Halva-Neubauer, supra note 116.

(321) See, e.g., GoUpstate.com, Spartanburg County Election Results, available at http://www.goupstate.com/article/20100608/articles/100609664 (last visited June 10, 2010). This threat to incumbent candidates was the fact that their legislative seats were not safe. If they did not vote against Beatty's candidacy, the Republican Party would support a primary opponent to unseat them. This threat was realized against McHaffey when he was defeated by newcomer Dale Culbreath 54.80% to 45.20%. Keith Kelly was defeated by Bill Chumly 62.54% to 37.46%.

(322) Cf. J. Spencer & R. Dalton, Groups Seek to Shape Legislature, Some Say Tactics used are 'Inherently Unfair', SPARTANBURG HERALD-JOURNAL, Mar. 23, 2008, at A1

(323) Id.

(324) Id.

(325) Id.

(326) Id.

(327) Id.

(328) Spencer & Dalton, supra note 322.

(329) Interview with Glen Halva-Neubauer, supra note 116.

(330) Id.

(331) Id.

(332) Id.

(333) Id.

(334) Id.

(335) Interview with Glen Halva-Neubauer, supra note 116.

(336) Id.; see also Rick Brundett, Kaye Hearn Is Second Woman on State's Highest Court, THE STATE, May 14, 2009, available at http://www.thestate.com/2009/05/141785432/kaye-hearn-is-second-woman-on.html.

(337) Interview with Glen Halva-Neubauer, supra note 116.

(338) Id.

(339) Id.

(340) Id.

(341) Cf. Brandenburg, supra note 285, at 207 (arguing that money is necessary to win a political election).

(342) Amicus Curiae Brief of the League of Women Voters of South Carolina at 6, Segars-Andrews v. Jud. Merit Selection Comm'n, 691 S.E.2d 453 (S.C. 2010) (No. 01-105).

(343) Segars-Andrews v. Jud. Merit Selection Comm'n., 691 S.E.2d 453, 456-57 (S.C. 2010).

(344) Id. at 456.

(345) Id.

(346) Peter Hardin, SC High Court Weighs Challenge to Judicial Selection, THE GAVEL GRAB, http://gavelgrab.org (last visited July 24, 2010).

(347) Id.

(348) Id.

(349) Barbara Williams, Allies Line Up on Judicial Challenge, THE POST & COURIER, Jan. 11, 2010, available at http://www.postandcourier.com/news/2010/jan/11/allies-line-up-on-judicial-challenge/.

(350) Id.

(351) Brundrett, supra note 143.

(352) Segars-Andrews v. Jud. Merit Selection Comm'n, 691 S.E.2d 453, 458 (S.C. 2010).

(353) Id.

(354) Id. at 457-61.

(355) Dillard, supra note 125, at 5.

(356) Id. at 6.

(357) THE FEDERALIST NO. 78, supra note 1.

(358) Interview with anonymous elected judge, supra note 198.

(359) Id.

(360) Id.; see also Telephone Interview with anonymous pre-reform judicial candidate, supra note 219.

(361) See Interview with anonymous elected judge, supra note 198.

(362) Id.

(363) Id.

(364) Cf. Vander Linden v. Hodges, 193 F.3d 268 (4th Cir. 1999) (holding South Carolina's legislative delegations to be unconstitutional because, as elected bodies exercising governmental functions, they had failed to satisfy the one person, one vote requirement);

Knotts v. S.C. Dep't of Natural Res., 558 S.E.2d 511 (S.C. 2002) (holding that the statute in question was unconstitutional because it clearly permitted the Legislature to execute a law it has passed by empowering its own members to administer the law by virtue of their office as legislators); Gunter v. Blanton, 192 S.E.2d 473, 475 (S.C. 1972) (holding that the state unconstitutionally allowed a school board to adopt tax increases only with the approval of its county legislative delegation and that the Legislature can delegate its taxing power to the school board but it cannot tie that power to legislative delegation approval). A statute cannot authorize members of a legislative delegation to participate in a decision as legislators. Delegation members may exercise legislative power only as members of the General Assembly. Gunter, 192 S.E. at 475.

(365) LEE EPSTEIN & THOMAS G. WALKER, CONSTITUTIONAL LAW FOR A CHANGING AMERICA: INSTITUTIONAL POWERS AND CONSTRAINTS 253 (7th ed. 2011).

(366) PINELLO, supra note 4, at 17.

(367) Id. at 1-2.

(368) Cf. id. at 6.

(369) Jim Davenport, Sanford: Court's Ties to Lawmakers a 'Tough Spot', AIKEN STANDARD, June 2, 2009, available at http://www.aikenstandard.com/story/m1043-BCSC-SCStimulus-1stLd-Writethru-06-02-0622.

(370) Id.

(371) Id.

(372) Id.

(373) Id.

(374) There are several cases in which the Court sided with the legislature when Governor Sanford was a party to the dispute. See, e.g., Jackson v. Sanford, 731 S.E. 2d. 722 (S.C 2011); Sanford v. S.C. State Ethics Comm'n, 685 S.E.2d 600 (S.C. 2009); Edwards v. State, 678 S.E.2d 412 (S.C. 2009).

(375) McConnell v. Haley, 711 S.E.2d 886 (S.C. 2011).

(376) Id.

(377) But see BONNEAU & HALL, supra note 94, at 14. Justices who must regularly appeal to voters to retain their seats are motivated to consider how voters will react to decisions they make in cases that involve important social issues. A strong body of scholarship suggests that judges will consider voter preference and vote strategically on important issues like the death penalty, abortion regulations, and tort litigation. This approach reveals a salient difference between elected and appointed justices.

(378) Interview with anonymous lawyer (February 11,2011).

(379) Interview with anonymous elected judge, supra note 198.

(380) Elizabeth Harring, Judicial Selection in Virginia: An Inherently Flawed Process, JEFFERSON POL'Y J., Mar. 17, 2009, http://www.jeffersonpolicyjournal.com/?p=400.

(381) Id.

(382) Id.

(383) Id.; see also Interview with anonymous lawyer, supra note 378.

(384) Id.

(385) Weeks, supra note 194.

(386) See Ciara Torres-Speltiscy, Monique Chase & Emma Greenman, Improving Judicial Diversity, BRENNAN CTR. FOR JUST., 2010, at 41 available at http://brennan.3cdn.net/31e6c0fa3c2e920910_ppm6ibehe.pdf.

(387) South Carolina Judicial Merit Selection Commission, LEAGUE OF WOMEN VOTERS OF GREENVILLE COUNTY, http://greenvilleco.sc.lwvnet.org/jmsc.html (last visited Nov. 10, 2012).

(388) National Lawyer Population by State, A.B.A. (2012), http://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/2011_national_lawyer_by_state.authch eckdam.pdf.

(389) Meeting on Initiative for Judicial Independence and Diversity at the League of Women Voters of the Columbia Area (July 28, 2010) (these numbers are approximate since the South Carolina Bar does not report an annual count); see also Toal, supra note 245.

(390) State and County Quick Facts (South Carolina), U.S. CENSUS BUREAU http://quickfacts.census.gov/qfd/states/45000.html (last updated Sept. 18, 2012) (All statistics are from 2012).

(391) Diversity of the Bench: South Carolina, AM. JUDICATURE SOC'Y, http://www.judicialselection.us/judicial selection/bench_diversity/index.cfm?state=SC (last visited Nov. 14, 2012);
                                 Supreme   Court of   Circuit
                                 Court     Appeals    Court

Judgeships                       5         9          46

Women Judges                     2         2          4

AfricanAmerican/Black            1         1          4
Judges

Latino/Hispanic Judges           0         0          0

Native American Judges           0         0          0

Asian/Pacific Island Judges      0         0          0


see also Judicial Diversity, LEAGUE OF WOMEN VOTERS OF GREENVILLE COUNTY, http://greenvilleco.sc.lwvnet.org/sc_demographics.html (last visited Nov. 10, 2012) [herinafter Judicial Diversity].

SC Judiciary Composition by Gender

* Male Judges 486 (65.9%)

* Female Judges 251 (34.1%)

SC Judiciary Composition by Race

* Caucasian Judges 596 (80.9%)

* African American Judges 132 (17.9%)

* Hispanic Judges 2 (0.3%)

* Asian Judges 3 (0.4%)

* Other/Unknown 4 (0.5%)

(392) See Judicial Diversity, supra note 391; Toal, supra note 242.

(393) See Judicial Diversity, supra note 391.

(394) Id.

(395) Id.

(396) Id.

(397) Weeks, supra note 194; see also Adam Goldstein, Note, Judicial Selection as it Relates to Gender Equality on the Bench, 13 CARDOZO J.L. & GENDER 369, 391 (2007) (noting that women are underrepresented at all levels of the South Carolina Judiciary).

(398) See Judicial Diversity, supra note 391.

(399) See id.

(400) See id.

(401) Id.

(402) See Toal, supra note 242.

(403) judicial Merit Selection Commission: Statistics on Candidates Screened Since Fall 2005, LEAGUE OF WOMEN VOTERS OF S.C., http://lwvsc.org/files/demofall05.pdf (last updated July 21, 2010).

(404) Id. (the report did not reveal percentages of other minorities).

(405) Legislator Demographics: State-by-State, NAT'L CONF. OF ST. LEGISLATURES, http://www.ncsl.org/default.aspx?Tabld=18248 (click "South Carolina"; then click "Ethnicity" and "Gender") (last visited Nov. 10, 2012).

(406) Id. (click "South Carolina"; then "Age").

(407) See id.; see also Larry O'Dell, Critics Target Virginia's Judge Selection Process, PILOTONLINE.COM, Mar. 20. 2009, http://hamptonroads.com/2009/03/critics-target-virginias-judge-selection-process.

(408) PINELLO, supra note 4, at 3 (emphasis added).

(409) O'Connor, supra note 110, at 9.

(410) Four USC School of Law Alumni Elected to the Judiciary, UNIV. OF S.C. SCH. OF LAW, (Feb. 2011), http://law.sc.edu/highlights/2011/20110208-judges/ (highlighting that Stephanie Pendarvis McDonnell, Letitia Verdin, and DeAndrea Benjamin were elected to the judiciary at the Feb. 2 session of the General Assembly).

(411) Cf. Judicial Diversity, supra note 391.

(412) Sarah Leverette, Member, League of Women Voters, Address at The League of Women Voters Judicial Independence and Diversity Program (Nov. 15, 2011).

(413) Telephone Interview with anonymous pre-reform candidate, supra note 219.

(414) Id.

(415) Cf. Telephone Interview with Jane Shuler, supra note 166 (noting that the system is designed to do away with the 'good ol' boy' network and to get more diversity on the bench).

(416) Interview with anonymous elected judge, supra note 198.

(417) Id.

(418) Judge Letitia Verdin, S.C. Circuit Court Judge, Panel on Judicial Merit Selection Process at the Greenville County Bar "Year End" CLE (Feb. 11, 2011).

(419) Legislator Demographics: State-by-State, supra note 408; see Samuel C. Patterson, Dimensions of Voting Behavior in a One-Party State Legislature, THE PUBLIC OPINION QUARTERLY, Vol. 26, No. 2 (Summer, 1962), at 185 (one-party states exist where one party controls a disproportionate number of the elected seats in a legislative body).

(420) Owen & Herrnson, supra note 49, at 538-39. Competing interests among legal specialist has led to an increase in the politicization of elections. This competition provides "networks for recruiting and supporting candidates, which in turn lead to more contested, competitive, and expensive elections." Id.

(421) See Dillard, supra note 125, at 5-6 (discussing the political controversies that developed around the issue of judicial selection in Virginia where the legislature is more evenly divided between Democrats and Republicans than is the case currently in South Carolina).

(422) O'Dell, supra note 407.

(423) Dillard, supra note 125, at 2.

(424) Id.

(425) Id.

(426) Tobias, supra note 114, at 44-45.

(427) Id. at 37.

(428) Tobias, supra note 114, at 45.

(429) O'Dell, supra note 407.

(430) Dillard, supra note 125, at 12.

(431) Id.

(432) Tom Jackman, Pitchfork Rebellion' Challenges State Selection of Judges in Virginia, WASH. POST,. Mar. 2, 2009, available at http://www.washingtonpost.com/wpdyn/content/article/2009/03/01/AR2009030101882.html?sub=AR.

(433) Id.

(434) Id.

(435) Editorial, Virginia Supremes and Judicial Selection, RICH. TIMES-DISPATCH, Jan. 12, 2011.

(436) Id.

(437) Id.

(438) Id.

(439) Id.

(440) Bush v. Gore, 531 U.S. 98, 128-29 (2000) (Stevens, J., dissenting).

(441) Id. at 158 (Breyer, J., dissenting).

(442) See BRADLEY C. CANON & CHARLES H. JOHNSON, JUDICIAL POLICIES IMPLEMENTATION AND IMPACT 157 (C.Q. Press, 1999).

(443) Id.

(444) Id.

(445) Id.

(446) Cf. id.

(447) Id.

(448) ISAK DINESEN, OUT OF AFRICA (Putnam, 1937).

(449) OUT OF AFRICA (Universal Studios 1985).

(450) See generally M.

(451) Cf. id.

(452) Id.

(453) Id.

(454) Id.

(455) Cf. Edwards, supra note 3, at 4 (noting that the American Judicature Society does not recognize the body as a commission because it is not removed from the ultimate appointing body; it also cannot be considered nonpartisan when control of nominations is vested in majority party leadership).

(456) See Driggers, supra note 62, at 1217-18.

(457) John Kittridge, Associate Justice, The Supreme Court of South Carolina, Greenville County Bar, Year End CLE (Feb. 11, 2011).

(458) Compare id. with THE FEDERALIST NO. 78, supra note 1.

(459) Cf. Toal, supra note 242.

(460) Cf. id.

(461) Cf. BONNEAU & HALL, supra note 94, at 137 ("argue against appointment schemes and for judicial elections because they suffer from ... partisanship, cronyism, and elitism").

(462) Driggers, supra note 62, at 1228; see also, Eberle, supra note 141. Responding to the critics who preferred public election, Eberle argued that the choice was between appointment and popular election. In his analysis he grouped South Carolina in with the states that use a merit scheme.

(463) Cf. Brundrett, supra note 143 (arguing that the ABA and the American Judicature Society do not classify South Carolina as having a true merit selection system).

(464) Id.

(465) See Driggers, supra note 62, at 1225. The new merit system could resemble a partisan, elective system, ld. The first appointments represented a bipartisan group of legislators and citizens, ld. This represents a positive move towards creating an independent judiciary, ld.

(466) CANON & JOHNSON, supra note 442, at 157.

(467) See Wendell Griffin, Judicial Accountability and Discipline, 61 L. AND CONTEMP. PROBLEMS 75, 77 (1998). The author, a Judge on the Arkansas Court of Appeals, explains the threat that judges face when they are subjected to disciplinary proceedings because of their rulings on contentious social issues, ld. In his commentary he called for public financing to aid judges who are forced to defend themselves with the aid of counsel. Id.

(468) Segars-Andrews v. Judicial Merit Selection Com'n, 691 S.E.2d 453, 463 (S.C. 2010).

(469) See O'Dell, supra note 407 (noting that legislative impasse is created when partisan elites cannot agree on judicial nominees and where neither party has a sufficient majority to control the outcome).

(470) See Legislator Demographics: State-by-State, supra note 401 (noting that the Republican Party has a majority in both houses of the legislature).

(471) See App'x 3.

(472) Edwards, supra note 3.

(473) THE FEDERALIST NO. 78, supra note 1.

(474) See id.

(475) See National Overview Map, available at www.followthemoney.org (last visited Feb. 1, 2010) (stating that the national total spent on High Court elections in 2010 was $11,632,075).

(476) Bryant Simon, The Devaluation of the Vote: Legislative Apportionment and Inequality in South Carolina, 1890-1962, THE SOUTH CAROLINA HISTORICAL MAGAZINE 234 (July 2000). Madison was quoted by U.S. Supreme Court Justice Hugo Black in his opinion on the reapportionment case Wesberry v. Saunders, 376 U.S. 1, 10 (1964). Black in turn is quoted by DAVID O'BRIEN, CONSTITUTIONAL LAW AND POLITICS: STRUGGLES FOR POWER AND ACCOUNTABILITY 683 (New York: Norton, 1991).

(477) But see BONNEAU & HALL, supra note 94, at 138-39. Judges are political beings who make political decisions; a perfect system does not exist for selecting judges in the American states. Id. Nonpartisan elections and the "Missouri Plan" should end because they aggravate the problems that come with judicial elections. Partisan elections are the better method for selecting state court judges and should be reconsidered, Id.

(478) But see Hall, supra note 9, at 316.

(479) PINELLO, supra note 4, at 136.

(480) Telephone Interview with Jane Shuler, supra note 166.

Teresa Nesbitt Cosby is an Assistant Professor in the Political Science Department at Furman University. She obtained her B.A. and J.D. degrees from Howard University and Howard University School of Law. Prior to joining the faculty at Furman she was Executive Director of South Carolina Legal Services and a former Assistant Deputy Attorney General with the South Carolina Attorney General's Office.
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Title Annotation:II. The Historical Development of Judicial Selection Methods: The Push for Independence C. Beyond Beatty - Other Impacts and Implications through Appendix 3, with footnotes, p. 113-136
Author:Cosby, Teresa Nesbitt
Publication:Faulkner Law Review
Date:Sep 22, 2012
Words:13584
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