Judicial Reform


South Carolina finally confronted the issue of judicial selection reform after Rep. Hicks Harwell (D-Florence) and Judge Danny Martin, a former Democratic legislator, were elected to the Circuit Court in spite of the fact that the South Carolina Bar had found both not qualified.

An explosion of media coverage and public outrage immediately followed. Gov. David Beasley, in turn, responded to news conferences protesting these elections by calling his own news conference with Speaker David K. Wilkins in which he called for the creation of a judicial selection commission and appointment of judges by the governor.

A House bill proposing selection by the governor and a Senate bill proposing a commission with election by the General Assembly were introduced too late in the session to make much progress, even though last-minute attempts were made by Sen. Greg Ryberg (R-Lexington) to append his bill to the appropriations bill.

Wilkins indicated at the end of the session that selection of judges by the governor had little chance of passing the General Assembly and that reform would be taken up in the 1996 session.

Reform advocates led by Sen. John Courson (R-Richland), Rep. Tim Rogers (D-Richland) and Rep. Jim Hodges (D-Lancaster) joined Sen. Kay Patterson (D-Richland) to block a House resolution setting the election date of nine new judges for October. Courson took the position that no such election should be held until the judicial selection process is reformed, including establishing a ban on sitting legislators running for judgeships.

The culture of self-service and cronyism of public officials in this state is as South Carolina as magnolias. Operation Lost Trust showed self-service at its worst; the selection of judges in South Carolina shows cronyism at its worst. In both cases public officials, primarily members of the General Assembly, put their personal interests first, the interests of their cronies second and the interests of the tax-paying public dead last.

Like many Third World countries, South Carolina has had a weak private economy in this century. Unlike highly industrialized nations and states, the private economy of South Carolina has aggregated and spent relatively small amounts of money while the public economy of the government of South Carolina has aggregated and spent much larger sums.

As a result, many of the best-paying and most prestigious jobs in South Carolina are in public employment, including the judiciary. The great bulk of public officials and higher-level government employees come from the second rung of the upwardly mobile.

Earlier this century, ambitious men entered the General Assembly as a way of enriching their business and professional opportunities. In the 1950s it was common for legislators to receive large retainers, legal fees and business income from companies subject to legislative and regulatory control. Conflicts of interest were built into state government to such an extent that state government operated an institutionalized system of extortion.

Many legislators were, in fact, lobbyists for private employers. So it was that the tradition of official self-service grew strong while the notion of public service remained embryonic.

Operation Lost Trust exposed some, but probably not much, of the systemic corruption and the culture of self-service built into state government. The degree to which many legislators lived off politics and leeched off lobbyists was finally cracked open.

As a result, the public which had been lulled into apathy by centuries of cultural hegemony by the state's elite and co-opted media finally aroused itself to demand reform.

In spite of foot-dragging in the General Assembly and an anemic response by then-Gov. Carroll Campbell, several of the most glaring abuses in lobbying and campaign finance were partially reformed.

The General Assembly did not, however, address the way in which legislators used their positions to advance their careers into the administrative and judicial branches of government. Service in the legislature had become a primary avenue to higher positions, both elected and appointed.

Judicial state office in South Carolina pays relatively well in comparison to the average income of the State's attorneys. Judges earn around $100,000 a year plus fringe benefits, but this is far below what the top attorneys earn.

The General Assembly pays nearly $30,000 a year in salaries and supplements, plus a very generous retirement package. This, too, attracts attorneys into the legislature, but attracts few of the better (and none of the best) attorneys who can earn much more in private practice.

As a result, the General Assembly has in recent years attracted a number of lower- to middle-income attorneys who need the additional income and legislative status to promote their private law practices. For many of these lawyer-legislators, a move from the General Assembly into the state judiciary brings a substantial increase in income and security, often with a welcome reduction in workload.

Understandably, many lawyer-legislators regard the House and Senate chambers as waiting rooms to judges' chambers on the career path of upward financial and professional mobility.

It is probably true that South Carolina will rarely, if ever, attract top lawyers into the state judiciary because few top lawyers have been willing to suffer a two-thirds salary cut.

The problem then is to attract the best attorneys from the middle level, not the weakest and the worst from the lower levels.

South Carolina's current judicial selection system has frequently dredged from the bottom, including the bottom of the legislative depths, where candidates pulled up to the surface have recently been found by the South Carolina Bar to be unworthy of consideration but who, due to the political culture of self-service and cronyism, were elected to judgeships anyway.

The problem of defective judges is not confined to state court, but is also found at local and federal levels in South Carolina. Over the years, too many magistrates have been political henchmen of state senators, too many city judges are cronies of city councils, too many probate judges have been elected by voters ignorant of their lack of qualifications, too many masters in equity have been picked for partisan reasons by county politicians, and too many federal judges have been selected because they were political allies or even staffers of U.S. senators.

The problem of incompetent, abusive or irresponsible judges in South Carolina requires a systemic solution. The South Carolina Bar should review and evaluate all candidates for all judgeships whether local, state or federal.

The election of probate judges should be replaced by including them with all other local and state judges in a screening process designed to assure that they have at least minimal qualifications and that all candidates have a fair chance of consideration.

South Carolina should establish a judicial merit selection commission to screen all candidates for local and state judgeships. This commission should include legislators and non-legislators chosen for their ability, impartiality and integrity. In addition, all legislators who seek judicial office should be required to resign their legislative office upon candidacy. Finally, the Commission should review all candidates for federal judgeships in South Carolina and render a public opinion on their fitness as well.

These proposed reforms will not eliminate the factors of self-service and cronyism in judicial selection but will significantly reduce their impact by abating the ability of lawyer legislators to use their legislative positions to get elected by fellow legislators.

Once resigned and out of the General Assembly, such legislators would have lost their leverage to advance themselves and fully use crony help because they would have lost their ability to trade votes, intimidate, retaliate and reward legislators who elected judges.

The proposed screening committee would thoroughly probe the background of candidates and evaluate their qualifications before the General Assembly votes on such candidates.

John V. Crangle is executive director of Common Cause/South Carolina.

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© Copyright by POINT, 1995

Last modified 7/9/95