When South Carolina attorney general Alan Wilson and a cadre of solicitors and sheriffs held a news conference in Columbia last month calling for judicial reform, one – and only one – member of the S.C. General Assembly was on hand: State representative Joe White, a Republican from Newberry.
While he applauded their call to action (which some observers called tepid at best), White knows surface changes aren’t enough. The problems run deep – and a serious response is needed.
That understanding comes from White having invested more than 400 hours of his own time talking with the many stakeholders involved: Law enforcement, prosecutors, and everyday citizens, including many who are crime victims. And, White says, it all starts with one important thing:
“We need to change the composition of the JMSC,” he begins.
The “JMSC” is the S.C. Judicial Merit Selection Commission – and it is the key force in how judges are selected in South Carolina.
For the uninitiated — which includes most of us — all candidates interested in receiving a judicial appointment submit resumes to the 10-member JMSC, which is controlled by the legislature. The S.C. Senate appoints five commission members; the S.C. House picks the other five.
“Currently, of those ten members, six are lawyer-legislators serving in the legislature,” White explained. “It is that commission that determines whether you’re qualified to be a judge in South Carolina.”
According to White, “the problem with that selection process is that these lawyer-legislators will present cases in front of judges and get to determine which judges they even send to the General Assembly to be voted on.”
To put the problem another way, it would be like baseball players picking the umpires who will be calling their games. And that, at a bare minimum, creates a potentially serious conflict of interest.
According to current rules, the JMSC forwards three names for each judicial opening to the S.C. General Assembly for consideration and final selection.
Supporters of the status quo say no significant issues have ever resulted from the present system. But White and fellow judicial reform advocates see it differently.
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“Perception is reality,” the lawmaker pointed out. “We’re the only state in America that does our judicial selection that way. You wonder why the other 49 don’t think it’s a great idea. And to me, it’s obvious why it’s not a good idea.”
In addition to the exceptionally cozy relationship the current system engenders, there is also the distasteful matter of how applicants seek judicial appointments.
“The people that want to be judges have to come down to the State House and beg us to vote for them,” White said. “They grovel for votes. It’s pitiful. From the first day of the session in December up through the first week in February, these people are down there. You feel like they’re panhandlers that are begging. I mean, these are distinguished attorneys. Some of them are already judges trying to get to the next level. And they’re acting like somebody trying to pledge a fraternity and begging people to get ’em in the fraternity. It’s sick.”
To address the problem, White has introduced a trio of bills, H. 4180, 4182, and 4183. The most significant of the three is H. 4182, which would increase the opportunities of judicial selection by increasing the number of candidates lawmakers are allowed to consider.
“It would simply say that all candidates considered and found to be qualified by the JMSC would be vetted to the General Assembly,” White said. “In other words, it wouldn’t be limited to three.”
Companion bill H. 4183 would go even further by significantly overhauling the JMSC itself.
“It would involve the executive branch in the process,” White noted. “Currently, the legislative branch exclusively controls the judicial branch; the executive branch has no involvement in the judicial branch at all. So under my proposal, six JMSC members would be appointed by the governor, two by the House, and two by the Senate. And it requires one of those governor appointees would be on the recommendation of the South Carolina Sheriffs Association, and one would be on the recommendation of the South Carolina Bar Association. For the other four, the governor would appoint whomever he or she wanted to. The other part would be that no lawyer-legislator could serve on the JMSC.”
White’s bills are still in the House Judiciary Committee, and with the clock ticking ever closer to the all-important crossover day, it looks likely that is where they will remain. For now, at least.
Because while it appears a safe bet that the legislature doesn’t address the issue in its closing weeks, it isn’t going away, either. A case can be argued that judicial reform is slowly working its way onto lawmakers’ priority list. High-profile events like Wilson’s call to action – coupled with thoughtful legislation like that proposed by White – are gradually propelling it to front-row status.
As Emperor Hadrian reportedly said when urging his countrymen to rebuild Rome after its burning, “Brick by brick, my citizens. Brick by brick.”
ABOUT THE AUTHOR …
J. Mark Powell is an award-winning former TV journalist, government communications veteran, and a political consultant. He is also an author and an avid Civil War enthusiast. Got a tip or a story idea for Mark? Email him at [email protected].
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