Auditing the Judicial Merit Selection Commission
Imagine that you are a human resources professional whose task is to hire the most qualified candidates for your employer. Because of past incidents of nepotism and favoritism influencing the hiring process, you are forced to deal with a single staffing agency that screens all of the candidates and presents you with up to three that the staffing agency deems suitable for employment.
If a question arose about the quality of candidates being presented, would not a prudent human resources professional examine the staffing agency processes to determine if the processes are sound, especially considering the damage suffered by the employer due to past incidences of nepotism and favoritism? As an elected member of the General Assembly, I find myself in the peculiar position of our above-mentioned human resource professional.
The General Assembly elects all of the judges to our state’s Administrative Law Court, Family Court, Circuit Court, Court of Appeals, and Supreme Court. The elections are held throughout each legislative session as necessary. The General Assembly relies upon the Judicial Merit Selection Commission (JMSC) to screen and recommend qualified candidates to serve in our various courts.
The JMSC was established years ago as part of an ethics reform act put into place in the aftermath of Lost Trust. As part of the screening process, the JMSC utilizes five Citizens Committees on Judicial Qualification to vet candidates for our various court vacancies. The citizens committees create a confidential report for each candidate. The JMSC relies heavily upon those reports in their public hearings as they determine the specific candidates to be found qualified.
The membership, structure and procedures of the citizens committees fall under the absolute authority of the JMSC chairman and vice-chairman – positions that rotate between the House and Senate each year. Furthermore, the chairman and vice-chairman appoint each member of the five citizens committees and their individual chairmen. The JMSC chairman and vice-chairman’s absolute control of the candidate investigative process and the private activities of the citizens committees goes against the legislative spirit by which the JMSC was created – to restore lost trust in our state government.
On May 2, 2019, WSPA TV out of Greenville ran an investigative news story about the lack of transparency in our judicial election process. This news report was initiated after a sitting Upstate family court judge was found qualified but not re-nominated earlier in 2019 leaving the seat open until another judicial election was scheduled. The judge met all of the objective requirements but did not meet one subjective requirement – judicial temperament – as determined by one of the five citizens committees that reports to the JMSC.
As a member of the House Legislative Oversight Committee, I brought this subject up at our last full committee meeting in December 2019 as a possible agency for the committee to audit during 2020. It was determined that the committee does not have the constitutional authority to conduct an audit of JMSC.
Which leaves us with the Legislative Audit Council (LAC) – a council created to audit the fiscal efficiency and compliance to state law of any state agency upon request by at least five members of the General Assembly. State agencies are defined as “all officers, departments, boards, commissions, institutions, colleges, bodies politic or corporate of the State . . .” that receives state tax funding. I and five other members of the General Assembly have filed an audit request letter with the LAC to examine the candidate screening processes used by the JMSC. We will await their response.