Judicial Reform: South Carolina Governor Signs Bill, Calls For More Action

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South Carolina judicial reform legislation (S.1046) was signed into law this week by governor Henry McMaster, albeit not without commentary that further reform is necessary.

The compromise legislation signed by the governor modifies the composition of a legislative panel, the South Carolina Judicial Merit Selection Commission (JMSC), which screens judicial candidates and determines which ones advance to a vote by the whole General Assembly.

In a letter sent to Senate president Thomas Alexander, McMaster noted that establishing term limits for members of the JMSC “will help ensure that judicial candidates and sitting judges do not feel beholden to a small cadre of lawyers who appear as perpetual gatekeepers, repeatedly controlling the keys to a candidate’s eligibility to stand for election by the entire General Assembly.”

McMaster reiterated concerns raised for years by this news outlet that political insiders use the JMSC to effectively rig judicial races. He commended the legislation he signed for raising the cap on the number of judicial candidates advanced by the JMSC from three to six, writing that this rule change “should make it much more difficult for the JMSC to effectively ‘fix’ a judicial election.”

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I have signed the Judicial Merit Selection Commission bill into law because the status quo is unacceptable, but I view it only as the first step in reforming our judicial selection process and ensuring the public has confidence in our state's judges.

My full signing statement: pic.twitter.com/XswePo660u

— Gov. Henry McMaster (@henrymcmaster) July 3, 2024

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But in McMaster’s mind, the scandal-scarred JMSC shouldn’t even continue to exist.

“I have made clear that my preference for the federal model of executive appointment with legislative confirmation,” he said. “I recognize, however, that two-thirds of the General Assembly’s members – the threshold necessary for a constitutional amendment – appear unwilling to relinquish its exclusive authority to elect judges.”

McMaster argued that “entrusting a single branch of government with effective control over the screening and selection of candidates and exclusive control over their election is not only inconsistent with the separation-of-powers principles enshrined in our Constitution, but it has also created at least the public perception that the process elevates a candidate’s influence and connections over merit and objective qualifications.”

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The governor derided the current legislative election process, which involves prospective judges “assuming a campaign post in the lobby or at the bottom of the escalator in the hopes of speaking to a legislator,” calling the current electioneering “demeaning, inordinately time-consuming , and completely unprofessional for those willing to stand for judicial office.

McMaster wasn’t the only advocate for change hesitant to call the the signing of reform legislation a complete success. First judicial circuit solicitor David Pascoe told FITSNews he hesitates “to criticize any form of progress, however, I agree with many of governor McMaster’s sentiments concerning the bill.”

Pascoe, like McMaster, argued the legislature has long exerted too much power over judicial branch of government – and said he doubted the seriousness of legislative leaders’ attempts to implement meaningful reforms.

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“I do not see much, if any, ‘reform’ with the bill,” Pascoe said. “There is an old expression that ‘to maintain the status quo, you have to make change.’ That’s exactly what we have here. The General Assembly did nothing to address the public’s reasonable perception that a select few lawyer-legislators exercise power to fix the outcome of the JMSC process. Nor did they address the conflict of lawyer-legislators practicing law in front of judges they evaluate.”

Pascoe – along with S.C. sixteenth circuit solicitor Kevin Brackett – has been among the most aggressive proponents of judicial reform among the state’s prosecutorial community. He’s also been an outspoken critic of the lawyer-legislators manipulating the system.

“Their failure to assuage these realities signifies the General Assembly’s lack of interest in real reform and instead their support of a status quo allowing lawyer-legislator dominance over the judicial selection process,” Pascoe added.

Pascoe said legislators “have the next session to prove us wrong, but meaningful reform won’t happen until a handful of lawyer-legislators put the interests of our state over their personal interests.”

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When FITSNews spoke with state representative Joe White – a member of the S.C. Freedom Caucus who was in the vanguard of the legislative push for judicial reform – he said he was “pleasantly surprised that we actually got the conference committee to approve a bill.”

According to White there were hold-ups as House and Senate lawmakers attempted to come to an agreement on the details of the bill.

White, called the legislation “a great first step in what I think judicial reform across South Carolina really needs” but clarified that the conversation is far from over.

White emphasized the need to reform the Palmetto State’s magistrate court system, which was quickly dropped from a judicial reform debate centered around the state’s circuit courts.

(Click to view)

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“We need to fix our magistrate system” White told emphasized to FITSNews that the houses’ original bill proposed reforms, adding the magistrate reform proposals “all got axed pretty quickly.”

White also emphasized the vulnerability of the state’s probate courts to corruption, calling them “a disaster in many places in South Carolina.”

Despite his acknowledgement of the need for further reform, White remained decidedly positive about the passage of this year’s bill.

“For somebody who spent two years going around the state talking about the need for judicial reform, to me, it is not a perfect bill, but it’s one that I’m excited about, because we’ve got something,” he said.

JMSC chairman Micajah Caskey praised the incremental nature of the reform in a statement to FITSNews.

“The legislative process is long and complicated,” Caskey said. “The passage of this bill is a testament to the hard work of so many.”

Caskey was one of many legislators to sit on an ad-hoc committee which heard hours of testimony on the issue.

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Caskey praised the bill for heeding “the counsel of current and former chief justices of this state to make improvements to our system without ‘throwing the baby out with the bath water.'”

“I think the state can be proud of the General Assembly’s conservative approach to improving the judicial selection model South Carolina has used since the 1700s,” he said.

Caskey also raised the prospect of addressing magistrate courts.

“The business of governing is never finished, so I think it’s important that we always ask ourselves where improvements can be made,” he said. “And, I’m hopeful that all of those voices that asked for ‘judicial reform’ will remain as loud for improvements to our magistrate system. I look forward to focusing on those challenges.”

South Carolina magistrates are currently appointed by the governor upon the advice and consent of the Senate, which may explain the why an early attempt at reform lacked the political viability of attempts to reform circuit court appointments.

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But many reform advocates, McMaster included, demand the legislature further cede control on the JMSC – regardless of his support for reforms to South Carolina’s magistrate court system.

McMaster’s warned that “continued resistance to meaningful change will only further elevate the current perception and exacerbate the actual imbalance of power.”

McMaster asked Alexander to “act promptly” to give his office an equal number of appointments of JMSC members as the General Assembly, to include members of his staff on the committee (instead of exclusively employing legislative aides) and suggested that if legislators interpreted the new legislation as a vehicle to appoint more lawyer-legislators to the JMSC, the legislation would be “reform in name only.”

McMaster argued that because legislators”unnecessarily delayed the effective date” of the legislation, they could implement his additional demands if they “are truly to committed to judaical reform.”

FITSNews has driven the conversation on judicial reform on South Carolina for years, count on us to keep you informed as the debate continues …

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ABOUT THE AUTHOR …

(Via: Travis Bell)

Dylan Nolan is the director of special projects at FITSNews. He graduated from the Darla Moore school of business in 2021 with an accounting degree. Got a tip or story idea for Dylan? Email him here. You can also engage him socially @DNolan2000.

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