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Lawyer-legislators wield dangerous power over South Carolina courts, officials warn

South Carolina officials are calling on lawmakers to reform a decades-old commission that wields significant influence over the state's unusual judicial selection process.

CHARLESTON, S.C. (CN) — The South Carolina attorney general and other officials say the state’s opaque judicial selection process needs to be reformed, arguing too much power is concentrated in the hands of influential lawyer-legislators.

Some members of the Judicial Merit Selection Commission have used their authority as a cudgel to disqualify judges seeking reelection, officials say, punishing members of the bench who rule against them in cases.

Others argue the current judicial selection process is outdated. South Carolina is one of the last states in the country where the Legislature elects most judges, a process that contributes to a less diverse judiciary and weaker checks and balances, opponents argue.

"I've heard great ideas from every corner of the state about judicial reform, and they are all better ideas, in my opinion, than what we have now,” First Circuit Solicitor David Pascoe said.

The criticisms came at a press conference held this week in Columbia. South Carolina Attorney General Alan Wilson was joined at the event by a bipartisan coalition of solicitors and sheriffs calling for new laws to reform the Judicial Merit Selection Commission.

The outcry comes on the heels of a controversial decision by the South Carolina Supreme Court to strike down a ban on abortion after about six weeks, arguing the law violates a state constitutional right to privacy.

Republican Governor Henry McMaster called for gubernatorial appointment of judges in his State of the State address, arguing that the high court’s ruling on the so-called fetal heartbeat law was “at odds with law and facts.”

Meanwhile, the highly publicized trial of Alex Murdaugh, a former attorney convicted of murdering his wife and son, has shed an ugly light on the sometimes overly cozy relationship among the state’s judges and attorneys.

Murdaugh admitted on the witness stand he stole millions of dollars from former clients in a scheme that continued for more than a decade, raising questions about how he was able to hide the thefts from the court officials responsible for administering the cases.

State Representative Joe White, who introduced two judicial reform bills this week, said the Murdaugh case was an example of how influential legislators and powerful attorneys can bend the system to their own selfish ends.

The 76-year-old Republican from Newberry is the state’s oldest freshman lawmaker. He said he grew up believing the government was for the people and by the people.

“I’ve been out here three months and I now know that the government in South Carolina is of the powerful, by the powerful and for the powerful,” he said.

A reform-minded commission

The Judicial Merit Selection Commission is a 10-member body responsible for screening judicial candidates seeking election by the Legislature to serve on most of the state’s courts, including the Supreme Court and the 16 circuit courts, which handle the bulk of civil and criminal cases.

Created in 1997, the JMSC is itself a product of reform. For decades, the Legislature had used its elective powers to ensure its own members could comfortably retire in the black robes.

Sixteenth Circuit Solicitor Kevin Brackett said in the early 1990s, nearly every judge was a former legislator. It was a well-known secret that the only way to get a seat on the bench was to run for the Legislature or find a powerful lawmaker who could whip up enough votes to elect an outsider.

“What are the odds that — in a state with thousands of lawyers — the best people to be judges would be former legislators?” he mused.

A constitutional amendment established the commission while also prohibiting sitting lawmakers from running for judgeships. Five of the commission’s members are appointed by the House and five by the Senate. Of its 10 members, four must be non-legislators.


Members of the commission contacted for this article did not respond to requests for comment.

The commission publishes upcoming judicial vacancies, investigates the qualifications of judicial candidates and holds public hearings on the results. The body then submits a slate of three candidates to the General Assembly for a vote.

South Carolina is one of only two states, including Virginia, that uses a legislative election process to pick judges, according to the National Center for State Courts. Twenty-two states hold popular elections to select justices while 26 states use gubernatorial appointment, usually in combination with other checks and balances, such as merit commissions or legislative approval.

Favoritism and cronyism

The Brennan Center for Justice, a left-leaning think tank, said in a 2017 brief that while popular elections and gubernatorial appointment systems had been extensively researched, the rarity of the legislative election method means its strengths and weaknesses were not well understood.

But what evidence existed suggested it was not a panacea for judicial independence.

The brief’s author pointed out that legislative elections could contribute to opaque decision making and standoffs that paralyze the judiciary.

In 2011, a divided Virginia General Assembly left two seats on the state's top court vacant for months, causing the high court to take fewer cases, the brief states. In 1996, the Virginia Senate left 30% of vacant judgeships unfilled amid intra-party politicking.

While laws may prohibit lawmakers from seeking seats on the bench, they can still lobby for friends and relatives, leading to allegations of cronyism.

(AP Photo/Brennan Linsley, File)

In 2019, Circuit Court Judge Tommy Russo, a longtime incumbent, chose to retire rather than face disqualification after he was accused of discriminating against female attorneys during a contentious commission hearing. Russo’s seat was eventually filled by the first cousin of Representative Murrell Smith, then a commission member.

The Sumpter Republican told The State at the time he did not believe the familial ties represented a conflict, but he chose to abstain from voting on his cousin’s nomination.

Maite Murphy, the wife of Dorchester Republican Representative Chris Murphy, was elected a circuit court judge in 2013. She was one of five candidates who sought to fill a newly vacant state supreme court seat, but dropped out after reporters raised questions about her familial ties.

Claims of favoritism arise when lawyer-legislators practice law before the judges they elect.

“The Legislature hires the judges, pays the judges and, every few years, those judges have to come back, and they can be fired by the Legislature,” Brackett said.

Commission members screen the judges and can ensure their name remains off the ballot when the Legislature votes – a power that is easily abused, Brackett said.

Most lawyer-legislators would never hold an adverse ruling against a judge, the longtime solicitor said, but there are “definitely” those that do.

“And the judges know who those people are, too,” he said.

Even if the judge’s ruling is fair and uninfluenced, the appearance of impropriety remains, officials say.

Fix it now, abolish it later

Officials called on state lawmakers at Monday’s press conference to bar lawyer-legislators from serving on the commission while giving the governor the authority to appoint its members.

They also want the commission to refer all qualified candidates to the Legislature for a vote, while requiring a written explanation if a candidate is determined unqualified.

White adopted the coalition’s reforms in two bills that have been referred to the House Judiciary Committee. Similar bills are pending in the Senate.

The changes would address the immediate problems with the commission, officials say, but the whole system should eventually be replaced — change that would require a constitutional amendment.

Chester County Sheriff Max Dorsey said the executive branch has been shut out of the judicial process, despite being responsible for enforcing the state’s laws.

“We have a wealth of experience that could go into the input and decision-making process of selecting those judges,” he said.

Brackett said he favored the Missouri Plan, or an assisted appointment method, whereby the governor appoints judges with the help of a nominating commission. Judges then periodically face retention elections, where residents can vote on whether to keep them on the bench or replace them with another appointee.

Not everyone is convinced a new system would be better.

Representative Marvin Pendarvis, a Charleston Democrat and attorney, acknowledged legislative elections aren’t a perfect method, but he is not convinced the attorney general’s plan is better. There is value in reviewing the system, he said, to make sure it is working as intended, however.

Rhys Hester, a Clemson associate professor who studies the court system, wrote in an email that gubernatorial appointment is often criticized for the same lack of transparency and favoritism that rankles opponents of legislative election.

“The Missouri Plan system seems fine but I’m not sure if it’s clearly better than the hybrid system [South Carolina] uses,” he wrote.

He said giving the governor the authority to appoint commission members would offer a check on the Legislature's voting power, however.

Ninth Circuit Solicitor Scarlett Wilson wrote in an email she was uncertain whether conflicts of interest could be eliminated entirely, but they can be mitigated.

“We have some good judges who feel immense pressure from lawyer-legislators — whether that’s actual or perceived doesn’t really matter,” she wrote.

Categories: Courts Government Politics Regional

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