Judicial reform effort in SC leaves chief criticism of undue influence unsettled

After months of debating over how South Carolina selects state judges, a solution to the biggest criticism of the judicial election process remains: How much power will lawyer-legislators continue to wield over the state’s judiciary?

Last week, the Senate passed a bill — S. 1046 — which aims to address ongoing concerns related to the fairness and transparency of how judges are elected in South Carolina and the influence lawyer-legislators hold over them. The bill cleared the Upper chamber with unanimous support, but was fraught with compromises, including one key omission critics of the current system say would drastically help to improve the public’s perception of the state’s judiciary. That is, the removal of all lawyer-legislators from the Judicial Merit Selection Commission, the gatekeeper for judicial candidates seeking election by the General Assembly.

State Sen. Dick Harpootlian, D-Richland, a lawyer-legislator and one of the most outspoken proponents of judicial reform, said while the bill lacks the removal of lawyer-legislators from the JMSC, it was a “huge step in the right direction.”

“There is something in (the bill) for everyone to either like or dislike, but this is a tremendous change from what we’ve done in the past,” he said.

The chief complaint by advocates seeking changes to how judges are selected involved lawyer-legislators serving on the JMSC and wielding undue influence over judicial candidates, who they may later appear before. S. 1046 does not address this concern as lawyer-legislators would still be permitted to serve on the vetting body.

“In a perfect world, we would not have lawyer-legislators on (the JMSC) because they get to vote at the end (once candidates are deemed qualified and referred to the General Assembly),” Harpootlian said. “However, with six, not three judicial candidates being reported out (by the JMSC) and 12, not 10 members on the JMSC and the governor having significant input on the JMSC’s makeup, defuses the power of any lawyer-legislator to any have any significant control of who comes before (the General Assembly).”

Here are some of the changes to the current judicial selection process that the House will soon consider.

Number of JMSC members and source of appointments

S. 1046 increases the number of JMSC members from 10 to 12, and for the first time, affords the governor several appointments to the body.

Specifically, South Carolina’s chief executive would appoint four members to the JMSC. Three must be lawyers (one primarily practicing criminal law; one, civil law; another, family law) and a retired judge from the supreme court, court of appeals, circuit court or family court, and who is not serving in an active retired status.

The speaker of the House would have four appointments, down from five.

The Senate would also appoint four members, two from the president of the Senate and two from the chairman of Senate Judiciary Committee.

Judicial candidate cap

The JMSC can currently recommend up to three candidates for each vacant judgeship. Under S. 1046 that number would increase to six.

By increasing the pool of qualified candidates, lawmakers say the process will become more transparent and could potentially promote more diversity on the bench.

“What has hurt a lot of our African-American candidates is that when you can only screen out three candidates, rarely do we ever get one African American, if even one,” said state Sen. Darrell Jackson, D-Richland. “I do think six works. It’s certainly better than three, and if there is any component of this legislation that can help increase diversity, that is it.”

Jackson said the challenge African American judicial candidates have historically encountered is the number of white candidates also running who’ve previously run and, thus, have more experienced in navigating what many refer to as an extremely rigorous vetting process.

Harpootlian said he believes the cap increase will lead to more transparency and fairness.

The bill’s cap increase gives “the JMSC less power to do anything other than to find judicial candidates qualified or unqualified on very objective standards. In the past (the JMSC) has always taken five candidates and narrowed it down to three, they don’t have to do that anymore,” he said.

JMSC term limits

Commissioners on the JMSC will be limited to four-year terms that cannot be served successively, meaning, former members would be eligible to return to the JMSC only after four years following their initial term.

One of the many criticisms in recent months levied against JMSC members, particularly lawyer-legislators, is that they maintain power and undue influence over the judiciary almost in perpetuity — at least until they leave the JMSC or the General Assembly.

With the exception of the the JMSC chairman and vice chairman, state Rep. Micah Caskey, R-Lexington, and state Sen. Luke Rankin, R-Horry, respectively, the current remaining commissioners would be term limited off. The chairman and vice chairman would be limited to a term of one year in their respective leadership roles.

Notwithstanding the four-year term limit, commissions appointed by the governor would be subject to a right of removal by the governor at any time.

Legislative appointees could be removed from the commission for “incapacity, misconduct, or neglect of duty by a resolution adopted by their respective chamber,” according to the bill.

The legislative member’s term, if ceasing to serve in the General Assembly, would also end when they leave office. Their seat would be filled by the office that appointed them. A member appointed to fill a vacancy may serve a full term after the expiration of the unexpired term to which they were appointed.

No member of the JMSC is eligible for nomination and appointment as a judge or justice of the state court system or administrative law judge division while serving on the commission and for a period of one year thereafter. If a candidate is a family member of a member of the commission, the member must resign.

Chances of passing the House

Now that S.1046 is headed to the House, House leadership said they’re confident that some version of S. 1046 will clear the House, including Speaker Murrell Smith, R-Sumter and Majority Leader Davy Hiott, R-Pickens.

“We certainly plan on getting something passed (on judicial reform) this year, I think that’s an important part of both bodies,” Hiott said. “We were waiting on (the Senate’s) bill to get over here, and we’re glad it’s coming to us.”