JACKSON CORRECTLY DIAGNOSES AILMENT, MISSES CURE TO STATE JUDICIARY

JESSE JACKSON is right about our judiciary.

South Carolina needs more black judges. As his attorney, Janice Mathis,
explains, "it takes discernment by a prosecutor, a judge to tell which kids
can benefit from rehabilitation," and we need "judges who understand the
community so they know which kid to give a break and which ones to slam the
door on." That means we need a diverse bench, with judges who look a lot
like the state, in terms not only of race but also of gender and geography
and life experience.

Our mandatory minimum sentencing laws - particularly those that relate to
nonviolent drug crimes - are awful public policy. As Mr. Jackson told our
editorial board last week, Florida Gov. Jeb Bush's daughter didn't need to
be jailed; she needed medical treatment. And Rush Limbaugh doesn't need to
be jailed; he needs medical treatment. But those same principles apply to
poor black kids and adults who have drug addictions but no social
connections to buy that break.

Our judiciary is under the thumb of our Legislature, and that undermines
the essential notion of separation of powers. While I don't agree with the
Rev. Jackson's contention that the state's bench is filled with jurists who
have been "driven through a right-wing sieve in Columbia," there's no
question that our judges know who brung 'em.

Need evidence? Look no further than the state Supreme Court's rulings
upholding the Legislature's unconstitutional habit of bobtailing. Or
consider the court's rulings that found no separation of powers problems
with the Budget and Control Board, where two legislators can overrule the
governor on purely administrative matters if they can convince either the
treasurer or the comptroller general to go along with them.

Mr. Jackson is right about the problems that our judicial and political
systems create in the courtroom, and thus throughout our state. But his
solution - public election of judges - is completely wrong.

Not only would it fail on most counts to solve the problems, but it would
create larger problems.

I suppose it would make some sense if you believe that the judiciary should
represent the public, just like legislators and governors. The emotional
center of the Rev. Jackson's argument is that there is "no democratic
representation" in our judiciary and that our selection system is
"fundamentally undemocratic."

Well, yes, it is. And thank goodness for that. The judiciary is supposed to
be fundamentally undemocratic.

Unlike the executive and legislative branches, the judiciary is supposed to
be completely insulated from the whims of public opinion. Judges are
supposed to make their decisions based on the U.S. Constitution, their
state constitution and the laws. They are supposed to consider the evidence
presented in the courtroom, and not opinion polls.

The framers of the state and federal constitutions deliberately saw to it
that the judiciary would answer to a different constituency than the
political branches, so it could serve as a check on abuses by those branches.

Do you really want the judge who is deciding your guilt or innocence or
sentence to be worried about how his decision will play at the next
election - about how an opponent might twist it to make him look soft on
crime - instead of what the law requires, and what the evidence
demonstrates? Do you want the judge who hears your lawsuit to be more
worried about how his ruling will affect campaign donations from the lawyer
on the other side - or from the big company you're suing - than about the
merits of your suit, and the validity of your lawyer's objections?

That's not to say our system is perfect. As the Rev. Jackson points out, it
has numerous flaws.

So let's fix them.

Let's demand that our legislators do the extra work of recruiting, and then
electing, more black judges and more female judges and more judges who
don't have a background of service in or work for the Legislature.

Let's demand that our legislators pass some sane drug laws, to replace the
ones that add 1,000 new inmates to our prisons every year and drain our
ability to pay for a decent education and decent medical care for people
who don't break the law.

And yes, let's take a look at the legislative control of the judiciary. We
improved things tremendously when we barred sitting legislators from
running for judgeships and created a Judicial Merit Selection Commission to
vet the candidates (both of which legislators now propose to roll back).
But the majority of commissioners are legislators, and the non-legislators
are appointed by legislators. Shouldn't the governor have a say - perhaps a
significant say - in who serves on that commission, so that both political
branches are involved in the selection of judges?

That final matter is no small concern. Most of the problems with our
judicial system are policy problems, not constitutional problems. The
question of separation of powers might be different. Legislators need to
address that problem head-on, and come up with a solution that is
compatible with the theory of our judicial system. Otherwise, they risk
having a solution imposed on them by the courts - and it's not likely to be
one that they like or that serves our state well.