SC lawmakers push for judicial reform to curb influence by lawyer-legislators

As South Carolina lawmakers continue discussions about how judges are elected and who should or shouldn’t be a part of that process, some lawmakers are already pushing for changes to eliminate the perception judges are beholden to legislators.

In the lead up to the 2024 legislative session one lawmaker wants lawyer-legislators to recuse themselves during judicial elections, while others wish to remove the limit of how many judicial candidates the General Assembly could consider in an election, and to keep lawmakers’ relatives from seeking the bench.

While some officials in South Carolina are calling for lawyer-legislators to be removed from the Judicial Merit Selection Commission — a 10-member body charged with considering judicial candidates’ qualifications — state Sen. Mia McLeod, I-Richland, pre-filed a bill — S. 871 — that would require all legislators, who actively practice law in the Palmetto State, to recuse themselves from voting in judicial elections, a key function of the General Assembly.

McLeod also sponsored a measure — S. 872 — to remove the three-judicial-candidate cap the JMSC follows when it submits qualified candidates to the General Assembly.

This is not the first time McLeod has offered these bills and she said they’re even more timely now amid an ongoing debate over how much control lawyer-legislators should have in selecting judges.

“The lawyer-legislators are typically the ones who don’t want reform because they don’t want to lose that control,” McLeod said. “They have (control) and they know they have it.”

McLeod added that her colleagues are unwilling to relinquish their control over the judiciary because “it’s hard for the public to prove that they have it.”

In addition to requiring that lawyer-legislators not be permitted to vote in judicial elections, McLeod’s bill, S. 871, aims to limit the potential for discrimination by mandating the JMSC to consider a candidate’s demographic background, including their race, gender and national origin.

Meanwhile, S. 872 echoes part of a proposal by state Sen. Dick Harpootlian, D-Richland — S. 879 — who even as a lawyer-legislator has been vocal about the need for increasing transparency in the judicial selection process to help restore the public’s trust of the judiciary.

“We’ve seen instances where secret proceedings were held to let a guy out of jail 16 years early, we’ve seen bond hearings in which bonds were given to people that clearly should not have gotten bonds, and the common denominator are lawyer-legislators who are representing these folks,” Harpootlian said.

Beyond removing the three-candidate cap, Harpootlian’s bill would disqualify a legislator’s close relative from seeking a judgeship, remove the ability for members of the bar to submit anonymous complaints against judicial candidates, and prohibit candidates from withdrawing their candidacy once the JMSC begins vetting that candidate.

“It’s the appearance of impropriety,” Harpootlian said. “I’m not alleging there actually is impropriety, although there are certainly cases that raise huge questions, but the appearance of impropriety shakes the public’s faith in the judiciary.”

Lawyer-legislators poised to protect the status quo

The proposals come as a House panel debates what changes, if any, lawmakers should make to how judges are elected, and while some lawyer-legislators claim they’re open for change, they appear poised to maintain the status quo.

For example, state Rep. Robby Robbins, R-Dorchester, a lawyer and member of the House Special Committee on Judicial Reform, said during a recent hearing that while he’s open to reform, he will adamantly defend lawyer-legislators serving on the JMSC.

“I am absolutely interested in any substantive good ideas to make the (judicial selection) process better,” Robbins said. “But I will absolutely defend the lawyer-legislators on the JMSC all day long. I know for a fact that the three that we have on there right now are as talented as anybody I know in the legal profession. And so, let’s talk about how the process can be better and I’m all for it.”

Critics of the current system used to elect judges argue that lawyer-legislators systematically leverage their positions to wield undue influence over state judges, skewing the state’s courts in favor of those who can make or break a judge’s career.

Chief among those critics include 1st Circuit Solicitor David Pascoe, who took a beating from lawmakers Wednesday, after, during a previous meeting, he gave examples of what he called “rotton JMSC actions.”

“I was astounded by the testimony I heard from Solicitor Pascoe,” said state Rep. Micah Caskey, R-Lexington, who, like Robbins, appears reluctant to push changes to the process as a lawyer-legislator and chairman of the JMSC.

In particular, Caskey took issue with Pascoe’s comments regarding former Circuit Court Judge Kristi Harrington, who Pascoe said was forced by the JMSC to withdraw from her judicial race after being intimidated and threatened by members of the panel for ruling against a lawyer-legislator.

Citing articles from The State and Post and Courier newspapers during Harrington’s 2017 reelection screening, Caskey criticized Pascoe and the media for not reporting other factors that led to Harrington losing her judicial position.

“The fact that (Harrington) had contact with legislators in violation of state law was brought up in (her) judicial screening process (and) is another basis for which one could justify the failure of her candidacy, and it doesn’t necessarily follow that this was the product of back-room dealing,” Caskey said.

In defense of Pascoe, state Rep. Gilda Cobb-Hunter, D-Orangeburg, suggested that some of her colleagues denigrated the solicitor after he provided exactly what they’d previously requested.

“There were a lot of comments about, ‘Well, you’re not providing facts, you know, if they are accused (of misconduct) tell us, show us,’” Cobb-Hunter said. “And then when they come before us and offer examples to buttress their point, then we hear that’s not appropriate and that it’s slanderous.

“And they are people up here who have a sense of the need to protect the status quo, if you will,” Cobb-Hunter said. “There are those who don’t really understand the status quo and then there are some who are just glad to be up here.”

During the special House committee’s review of the judicial selection process, the panel has heard from multiple state officials, including South Carolina Supreme Court Justice John Kittredge, S.C. Attorney General Alan Wilson and 16th Circuit Solicitor Kevin Brackett, who all said that a public perception of undue influence by lawyer-legislators over the judiciary is a problem that needs to be addressed.

South Carolina Law Enforcement Division Chief Mark Keel recently echoed that sentiment to the House panel.

“I think the perception, with regards to the selection of judges, is a problem, I’m not going to lie to you,” Keel said, who is also a non-practicing attorney. “There’s a perception among many that the judicial branch in this state is not a co-equal branch of government, and that it is beholden to those who empower them.”

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