By John Crangle
The 2024 session of the South Carolina General Assembly will face a major controversy over the question of whether the current system of selecting state judges should be changed to reduce the influence of lawyer-legislators over the judges that they elect and practice before.
This is an old controversy dating back to the troubled period when the Judicial Merit Selection Commission was created in 1997 after Operation Lost Trust prosecutions. They included Circuit Judge Tee Ferguson, who was convicted of bribery and cocaine in 1991 just a year after he was elected while in the House by the General Assembly and voted for himself.
The major problem at present is that it’s widely suspected that lawyer-legislators who elect and re-elect all circuit and appellate state court judges exercise undue influence over the judges they practice before and get favored treatment in court.
Sen. Wes Climer (R-York) recently announced that he would put objections on all judicial candidates seeking election until the judicial election system is reformed. On Oct. 3, House Speaker Murrell Smith (R-Sumter) appointed a committee to make suggestions about improving judicial selection.
Currently the Judicial Merit Screening Commission has three lawyer representatives, three lawyer senators, three practicing attorneys and one non-lawyer. None of the members have ever been judges and have no special expertise in evaluating judicial candidates. The 10 may, in fact, vote for judges based on cronyism and partisan and identity politics rather than on qualifications.
One way to prevent favoritism by judges would be to elect to the commission only non-lawyers and retired attorneys and judges who would not be practicing law before the same judges they elect.
Another problem which has provoked controversy at the Statehouse since the 1980s is the argument that women and Black South Carolinians have not been selected in fair numbers as state judges. However, that issue has diminished in recent years as more minority and women judges have, in fact, been elected.
The major problem at present is the issue of six lawyer-legislators having majority control over the 10-member Judicial Merit Selection Commission and the fact that, according to an article in The Post and Courier on Jan. 4, 2023 — based on data from the National Conference of State Legislators — some 27% of South Carolina representatives and 46% of senators are attorneys. (The national average of lawyer-legislators is 14%.) Perhaps one reason lawyers run for the Legislature is to be able to pick the judges they practice before.
Any serious reform of judicial selection would remove all lawyer-legislators from the Merit Selection Commission to eliminate conflicts of interest and diversify membership on the commission to prevent favoritism by judges to lawyer-legislators and provide for more disinterested and more widely experienced retired attorneys and judges and non-legislator commissioners.
I suggest new legislation which would restructure the new judicial selection commission by changing the parties who make the appointments. And, while the House study committee is considering several proposals for changing how judges are selected, none create a new commission made up primarily of retirees.
Under my proposal, only two of 12 members could be legislators. The Senate president and House speaker would each appoint one member from their chamber, though neither could be an attorney. Other members would include a retired sheriff, a retired police chief, and non-practicing attorneys selected from each of the state’s two law schools. At least four of the remaining seats would be retired judges. The governor would have the choice of appointing either a non-lawyer citizen, retired attorney or retired judge. And the president of the South Carolina Bar could pick a retired attorney or retired judge.
The proposed qualifications to the Judicial Merit Selection Commission would be much more diverse than the qualifications of the 10 current members of the commission. They would replace lawyer-legislators on the commission with retired judges and attorneys who have trial and appellate expertise, making them better able to evaluate with disinterest the qualifications and characteristics of the candidates for judicial office.
John Crangle is a graduate of the University of South Carolina School of Law and member of the South Carolina Bar. He was a member of a commission appointed in 1991 that proposed ways to improve the selection of judges. Approved changes included a ban on sitting legislators voting for themselves for judicial positions and the creation of a Judicial Merit Selection Commission to screen judicial candidates. He also participated in reforming the magistrate system. Changes effective in 1996 included requiring new magistrates to have a four-year college degree and pass a course in the basic laws magistrates enforce.
