Nothing Could Be Finer Than to Be in Carolina…
Senator (Shane) Massey said, “I would prefer to have a court that looks like South Carolina, but I’m not gonna vote for somebody who has a worldview that is inconsistent with where I think the State should go.” He also said the [South Carolina] bar needs to do a better job at grooming and getting females and minority attorneys ready to be judges so that they can have the best candidates going forward.
-As reported by Andrea Mock in WLTX News 19 Columbia coverage of Legislative Preview Day held Jan. 8, 2024
Women make up more than half of the population, registered voters, and lawyers in South Carolina, yet the state legislature won’t consider the most qualified ones to be judges. That leaves our state with judges who are mostly male and white and it is reflected in their rulings.
Women are nowhere to be found on the S.C. Supreme Court, which consists of five male justices. S.C. is the ONLY state in the entire country with 100% men on its highest court. Women are scarce in the legislative branch. The S.C. senate has only 6 female Senators and women make up only 15% of the House and Senate combined. The lack of female representation in the state legislature ranks S.C. 49th in the nation. Only West Virginia has fewer women in their legislature.
The disparity among male-female and black-white judges is startling. According to “The Gavel Gap,” an in-depth analysis of state judges conducted by Vanderbilt University and the University of Toronto, although women make up more than half of the population and all law school students, fewer than one-third of state judges are women. Black people represent about 26% of the S.C. population, but just 13% of judges. Of the 128 judgeships elected by the SC legislature, 75 or 59% are white men and 5 or 4% are black men. Male judges made up 63% of the judiciary and white judges make up 87% of all judges.
Many will say they vote for the best qualified without regard to race or gender, but these numbers rebut that familiar refrain. The biographical information provided during the judicial elections show that the white man is frequently elected over more qualified, more experienced women and people of color. If you are a black woman lawyer in SC, you are doubly doomed, based on the statistics. This cannot continue.
Many of us watched with dismay recently as another white man was elected by the state legislature to the S.C. Supreme Court, despite two very qualified women also in the race. When Majority Leader Sen. Shane Massey was asked about this selection, he opined that “judges should be chosen because they see the world the way he sees the world.” This is wrong in so many ways.
South Carolina is one of the few states where judges are elected by the legislature. This gives the legislature power over judicial selection and gives the appearance of partiality in judicial rulings when legislators are involved. This becomes even more problematic when the legislators do not understand the role of the judiciary nor the credentials necessary for a sitting judge.
We all learned in high school that there are three branches of government and that the judicial branch applies the law to the facts before it, in order to administer justice. The credibility and impartiality of our judges are their only weapons in fulfilling their constitutional duties.
Judges should not be selected simply because they see the world as some male legislators see the world. The courtrooms in this state may be the only opportunity for ordinary citizens to come in direct contact with the system that controls their lives. It is critical that this system demonstrates its fairness and impartiality. It cannot be seen as a rigged process, delivering opinions which are political or biased by self interest.
Further, the judges in those courtrooms should be a cross section of the population, applying their life experience and knowledge to the task before them. It is critical that these judges not see the world only as Sen. Massey sees the world. The litigants in the courtroom should understand that their case may be adjudicated by someone like them and not just by someone who cannot understand their facts nor their world.
Sen. Massey also said that the SC Bar Association should try to groom more women and minorities to become judges. Does he suggest that the Bar should instruct women and minorities to look at the world as he does? Does he believe that the only women and minorities qualified to be judges have his perspective? Does he believe that the two extremely qualified women who were recently rejected for the S.C. Supreme Court were unqualified because of their worldview?
The population of South Carolina and the enrollment at our state’s two law schools are more than 50% female. Why does Sen. Massey believe that none of these are qualified to be judges? In fact, both of the women rejected in the most recent legislative election for the state Supreme Court had more experience on the Court of Appeals than the man who was selected. The Court of Appeals is considered by many to be a necessary stepping stone to the Supreme Court. This is not a criticism of Justice Gary Hill who was elected to the highest court, but a refutation of Sen. Massey’s claim to the news media that there aren’t enough qualified women from which to choose judges.
Running for judicial office is no easy task and yet well-qualified women pursue that demanding job only to be rejected by the legislature, which chooses instead to elect its own past members who are mostly male and who share its beliefs. It is problematic that the legislature is allowed to choose the judges who control our lives, but it becomes totally unacceptable when that same legislature prioritizes political ideology over qualifications. Clearly, those qualifications go beyond simply having previously served in the legislature or being born a white man.
Vanderbilt’s study of state judges concluded, “Our courts must be representative in order to fulfill their purposes. Our laws are premised in part on the idea that our courts will be staffed by judges who can understand the circumstances of the communities which they serve. Our judicial system depends on the general public’s faith in its legitimacy. Both of these foundational principles require a bench that is representative of the people whom the courts serve.”
We must all have confidence that judges can, at a minimum, have some understanding of the experiences of the various communities they serve. Without that, there is no fairness and no justice for more than half of our state’s citizens.
It is clearly time we are more discerning about the candidates we elect. Our votes should elect those legislators who recognize and support qualified women and minority candidates for judicial positions.
Barbara George Barton
Attorney, Champion for Judicial Reform, and SC Women in Leadership Founder