South Carolina: latest bill in 2-decades long debate- should Merit Selection Commission send three judicial nominees or “all qualified” names?

In South Carolina, it is the legislature that elects the state’s top judges. Since a 1997 constitutional amendment the nominees for a vacancy have to come from a “Judicial Merit Selection Commission” that is controlled by the legislature itself. The Commission is limited to nominating 3 names and sending them on to the legislature for a final vote. Now, however, the latest bill in a 2-decade long effort to change the way the Commission operates has come back to the House floor.

Under HB 3204 as approved by the House Judiciary Committee last week any reference to the Commission making “nominations” is repealed. Instead, the Commission’s sole responsibility is to determine if the nominee is “qualified” and send “all [qualified] candidates” on to the General Assembly for election.

For example, current law (2-19-80) provides

The commission shall make nominations to the General Assembly of candidates and their qualifications for election to the Supreme Court, court of appeals, circuit court, family court, and the administrative law judge division.

The new language would read

The commission shall release to the General Assembly a list of the names of all candidates that are qualified, as provided in Sections 15 and 27, Article V of the Constitution of this State and Section 2-19-35, for election to the Supreme Court, court of appeals, circuit court, family court, and the administrative law court.

The bill was scheduled for floor debate today, which has been adjourned until tomorrow.

As noted, this is just the latest in a series of bills dating back to at least 1999 to change the role of the Commission to provide it must send all qualified individuals forward. As I noted when a similar bill came up in 2015,

There have been over two dozen [as of December 2015] pieces of legislation to alter the number of names released by the commission. Almost all focused on the release of all qualified names, with “qualified” meaning either a) that the individual meets the minimum requirements for the position (age, attorney, etc.) or b) the person was “qualified” to serve in the opinion of the commission.

The practice for the better part of a decade was for the House to pass the “all qualified names” provision and for the Senate to either reject it or amend it to “no more than 3 qualified names” but with a provision that more than 3 names could be sent if two-thirds of the commission approved. This House/Senate split occurred in the 2003/2004 (HB 4734), 2005/2006 (HB 2079), and 2007/2008 (HB 3463 & SB 40) sessions. The Senate passed its own standalone version (3 names, more if two-thirds of commission approved) in 2007 (SB 40) that the House failed to act on.