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A SC judicial reform playbook: Here’s what’s at stake, key players, reform proposals

As lawmakers mull over revamping how South Carolina selects state judges, here’s a look at what’s at stake, along with some of the key players and proposals under consideration.

Recently, a special House committee was formed to examine what some have classified as ongoing ills within the state’s court system, namely the way state judges are selected and reappointed. Currently, the Legislature controls the process, which critics say gives legislators, many of whom are also lawyers, an advantage in the courtroom. A judge who fears his job may be on the line in upsetting a lawyer-legislator may be swayed to rule in the lawmaker’s favor.

The committee, so far, has heard testimony from several officials across the state, including South Carolina Supreme Court Associate Justice John Kittredge, Attorney General Alan Wilson and Solicitors David Pascoe and Kevin Brackett of the 1st and 16th Judicial Circuits, respectively.

Soon, the committee will consider testimony from the public. The committee is expected to release a report detailing its recommendations to the House in February.

The Legislature has had absolute authority to select judges in South Carolina for more than 280 years. In 1996, that authority was enhanced with the creation of the Judicial Merit Selection Commission, or JMSC — a 10-member body charged with considering judicial candidates’ qualifications. Candidates must first be found qualified by the commission before they can be considered by the full Legislature.

The commission is now made up of six legislators and four members of the public appointed by legislative leaders.

Now at stake is an opportunity for the General Assembly to revamp the judicial selection process by, in part, reconfiguring the JMSC by giving the executive branch a seat at the table in determining who’s qualified to serve as a judge.

Another priority for critics of the current system is increasing the diversity of South Carolina judges, which is in decline. For example, next year the state Supreme Court will be made up exclusively of white justices, unless a person of color is selected to replace Chief Justice Donald Beatty, who’s set to retire next year.

But whether the Legislature will relinquish some of its authority in selecting judges remains to be seen.

Key players in the push for judicial reform

So far, five people have taken the spotlight in the debate for judicial reform, including Kittredge, Wilson, Pascoe, Brackett and state Rep. Micah Caskey, a Lexington County Republican who chairs the JMSC.

JOHN KITTREDGE

During the House special committee’s first meeting last month, Kittredge, who’s slated to become Supreme Court chief justice next summer, encouraged the panel to distill the current judicial selection system without completely overhauling it. Besides claims by some prosecutors of undue influence by lawyer-legislators, he pointed to an increasing lack of diversity on the bench.

“We have a great bench,” Kittredge said. “We have a great system. But if it doesn’t reflect the people of South Carolina, we are going to lose the respect and integrity by the public we serve.

“That belief by the public in the integrity of our judicial system is absolutely critical to a functional, working and fair justice system for all South Carolinians.”

Kittredge said there are three African American judges who soon will retire due to the state’s mandatory retirement age of 72, including Beatty and Circuit Judges Clifton Newman and Alex Kinlaw. Kittredge also noted Judge Casey Manning, who retired late last year.

“Losing those four within an 18-month period is a hit,” Kittredge said. “It’s a hit on the intellectual institutional knowledge that they have brought to the system, and it’s a hit in terms of diversity. I’m concerned about that.”

ATTORNEY GENERAL ALAN WILSON

Wilson, who’s been advocating for judicial reform for years, began holding discussion panels on the topic in August. He is also pushing for legislators — lawyers or otherwise — to be removed from the JMSC, emphasizing the importance of bringing the executive branch into the equation when judges are screened.

“I think a good system would be one where legislators do not currently serve on the JMSC,” Wilson said. “My preference is for the governor to appoint, if not all, at least a significant majority of the JMSC members.”

In showcasing problems he believes exists in the current judicial selection process, Wilson offered the special House committee two examples.

One example involved an unnamed CEO of a major industrial company in South Carolina who classified the state as a “judicial hellhole,” following a lawsuit his company lost at the hands of a lawyer-legislator on the other side.

Another example involved a member of a citizens advisory committee on judicial qualifications. The committees, made of citizens in areas where circuit judges serve, offer opinions about judicial candidates based on their experience and qualifications. The citizen told Wilson that even though the committee had found a candidate lacking in experience, the candidate was found most qualified by the JMSC and ultimately was elected.

“All the members of this advisory committee were like, wow, I mean, no experience, and they were found most qualified,” Wilson said. “And that was the perception they were left with.”

But some lawmakers pushed back, arguing that the “imaginary” characters referenced by Wilson weren’t enough to warrant change.

DAVID PASCOE

Pascoe, the 1st Circuit solicitor, has become a leading voice among prosecutors calling for a JMSC makeover. He recently sent a letter to legislators signed by nine elected solicitors calling for the removal of all lawyer-legislators from the JMSC.

Pascoe pointed to specific instances of what he referred to as “rotten JMSC actions,” including two former circuit judges who Pascoe said were unfairly targeted by certain JMSC members following adverse rulings against lawyer-legislators.

Those judges were Tommy Russo and Kristi Harrington, who after ruling against lawyer-legislators were retaliated against in their reelection interviews before the JMSC, according to Pascoe.

Russo and Harrington, Pascoe said, were forced by the JMSC to withdraw from their judicial races after being intimidated and threatened.

Pascoe also shared Kittredge’s concerns about a lack of diversity in the courts.

“A major reason I am personally calling for reform is because of the lack of diversity on the bench,” Pascoe said. “Look at what the current process has gotten our state. We currently have no women on our Supreme Court, and come this July we will have no person of color. It is insanity for anyone not to support reform for the good of our state.”

KEVIN BRACKETT

Brackett, the 16th Circuit solicitor, is one of the nine signers on Pascoe’s letter to House Speaker Murrell Smith and Senate Judiciary Chairman Luke Rankin calling for the ouster of lawyer-legislators on the JMSC.

There are “countless stories of legislators coming in and talking to judges and saying, ’Say, judge, aren’t you up for reelection next year?,’” Brackett said. “What would be the point of that? Except to remind them who holds the whip hand. Who’s in charge here.”

Brackett said the issue is not with the judicial selection process but with the reselection process they must undergo every six years.

“Every judge in the state knows they have to come back to the Legislature every so often and beg for their jobs,” Brackett said. “That is the sword of Damocles that hangs over every judge, and that is the authority and the power that certainly, legislator lawyers, JMSC members have exploited their influence over these judges.”

MICAH CASKEY

Caskey, one of six lawyer-legislators on the JMSC as well as its chairman, pushed back against Wilson and Pascoe in seeking clarity about how any of the reform proposals currently offered would alleviate concerns.

Caskey said he’s not necessarily looking to maintain the status quo.

“I’m here to insist that we apply rigorous analysis to any proposal that comes forward,” Caskey said. “And that we do that in a thoughtful way to uncover as best we can, what realities might then come from the adoption of any of these particular proposals.”

Reform proposals

Wilson, Pascoe and Brackett have offered recommendations to the special House committee that they say will help curb undue influence of lawyer-legislators on judges while increasing transparency in the selection process.

ALLOW THE GOVERNOR TO APPOINT JMSC MEMBERS

Wilson suggested that the governor be permitted to appoint some, if not all, members to the JMSC.

“In the process of electing judges, the executive branch has 0% involvement,” Wilson said. “And what we want, those of us in the executive branch charged with enforcing the rule of law, the laws that (theLegislature) passes, is to have an equal check” in that selection process.

Wilson argues that by bringing the executive branch into the process, no single branch of government can wield the sort of improper influence currently in question. It would also help, he said, to ensure that the public has a say in the quality of the judiciary by expanding accountability over elected officials across the state’s entire electorate.

“The reason the executive branch needs to have a significant weight in representation and selection of judges is because everyone votes for the governor,” Wilson said. “So, we want to couple power and accountability by adding the governor as an equal partner in this process.”

DISCONNECT THE JMSC FROM THE LEGISLATURE

In addition, Wilson said he’d like the JMSC to become a completely independent body apart from the Legislature and its staff.

Specifically, he suggested the JMSC office be removed entirely from the State House grounds to a standalone facility with separate lines of funding with staff who are only accountable to commission members.

Wilson maintains that removing the JMSC from under control of the legislative branch by housing it in a separate building would further remove the opportunity for undue influence by lawyer-legislators.

REMOVE THREE-CANDIDATE CAP

The JMSC can currently recommend up to three candidates for each vacant judgeship. This proposal would instead allow the committee to send an unlimited number of candidates to the Legislature for consideration.

Doing so would give legislators a larger pool of qualified candidates to consider, potentially helping to cure a growing lack of diversity on the bench.

CAP TERM LIMITS ON THE JMSC

Wilson has urged lawmakers to consider capping the number of years any member can serve on the JMSC, although he didn’t specify what that cap should be.

“We would like to see term limits. I don’t want to see any one person who’s not directly elected to be able to sit in one place for five or 10 years,” Wilson said, referring to the four slots on the JMSC that consist of non-elected officials and appointed by the legislative leadership.

POPULAR RETENTION (NOT CONTESTED) ELECTIONS

Brackett, who said the problems created by lawyer-legislators arise when judges are reelected to the bench, proposed allowing voters to determine whether a judge keeps their job. A judge would still be initially appointed by the Legislature, but the reelection would be up to voters.

“I trust the public to make these decisions,” Brackett said. “They elected all of us. Right? Why shouldn’t they be trusted to decide whether their judges are doing a good job?”

The vote would be a simple “up or down” as to whether a particular judge should be retained. The election would not be contested, which would require candidates to publicly raise money.

“If (the public) says no, (the judge) goes back through the process and is screened again, preferably by the governor, but possibly by the Legislature,” Brackett said. “That way, since you’re term limited as a governor, you only ever get one crack at the judge and can never influence the candidate.”

Alternatively, Brackett said the governor could unilaterally be given the authority to reappoint judges, but in that case, the term limits for those judges should be extended from six to eight years.

That way, again, the governor would only be permitted to reappoint a judicial candidate once and, therefore, would not be afforded any opportunity to inappropriately sway a judge’s ruling.

ALLOW RETIRED JUDGES TO SERVE ON JMSC

To avoid the potential for undue influence, Brackett suggested a pool of retired judges and senior members of the bar be permitted to serve on the JMSC.

These retired judges would never appear before the judicial candidates they screen, which means there wouldn’t be an opportunity for undue influence in any case.

CREATE A BUDGETARY THRESHOLD FOR THE JUDICIARY

To further protect judicial independence, Brackett suggested that the judiciary’s budget maintain a threshold, so as to further limit the potential for legislative influence over judges.

Under that proposal, the judicial budget would be at least as much as the previous year’s or be set at a percentage of the total budget, whichever is greater. That way, the judiciary’s budget couldn’t be cut as punishment ”for not doing the bidding of the Legislature,” Brackett said.

In addition to the JMSC, there are lawyer-legislators who serve on the House budget committee, which the chief justice of the Supreme Court must appear before every year in making a case for funding.

Brackett believes that by creating this minimum budgetary threshold, no lawmaker would be able to retaliate against the judiciary in any way by holding the power of the purse.

Although Brackett did not offer any evidence of this ever happening, he suggested the move could help further insulate instances of undue influence.