S.C. attorney general, lawmakers talk options to restructure how state picks judges

CHARLESTON, S.C. (WIS) – South Carolina’s top prosecutor is calling for the way the state selects its judges to be shaken up, and he has vowed to put his support behind efforts in the state legislature to do it.

South Carolina’s General Assembly is out of session right now, but a host of lawmakers are in Charleston this week for the annual Southern Legislative Conference.

That presented an opportunity for Attorney General Alan Wilson to convene a group of legislators to talk about judicial reform before next year’s session starts in January.

“We don’t want to wait until December to have the conversation,” Wilson told reporters following the roundtable discussion in downtown Charleston on Monday. “We would like to raise the awareness now, create some synergy, and get some energy behind this so when we hit Christmas when we hit the new year, we’re running full speed at a real reform package.”

South Carolina is one of two states in which the General Assembly elects judges.

Under the state’s system, judicial candidates go before a 10-member screening panel called the Judicial Merit Selection Commission (JMSC), which then reports up to three qualified candidates between whom the General Assembly picks to fill seats.

That screening panel is made up of four citizen lawyers and six legislators, and typically, the legislators are also lawyers.

Prosecutors claim that can create perceived if not actual, favoritism in the courtroom.

“That’s what happens to me all the time when I go into court against a legislator,” Ninth Circuit Solicitor Scarlett Wilson, who spoke alongside the attorney general in support of judicial reform, said. “And no offense to the lawyer-legislators, but when I go into court, I am against someone who can hire, fire, and retain, and I don’t have that.”

Proposals to change this system range from switching up that committee’s makeup, including banning lawyer-legislators from serving on the JMSC, to adopting a version modeled on the federal judicial selection system, by giving the governor the power to appoint judges with senators’ approval.

More than 30 lawmakers from both parties and both chambers were in the room Monday — numbers skewed largely toward Republicans and House members — but they did not include any current members of the JMSC or either chamber’s Judiciary Committee chairman.

There was no clear consensus among those present on which reforms they should push.

However, there was a near-clear consensus that something needs to be done.

“It may be working fine — and I’m about to tell you I don’t think it is — but it may be working fine, but if people don’t think it is, then you’ve got to do something about it,” House Speaker Pro Tem Tommy Pope, R – York, said.

Pope, an attorney and former solicitor, said he does not believe he and most other lawyer-legislators have outsize control over the judicial selection process.

“The real control is on that darn committee,” he said of the JMSC as other lawmakers in the room nodded their heads.

Rep. Heather Bauer, D – Richland, and Rep. Deon Tedder, D – Charleston, said changes should also put an emphasis on ensuring the diversity of South Carolina’s judiciary reflects the diversity of the state’s people. South Carolina is currently the only state in the country with an all-male Supreme Court, and the 13% of the state’s elected judges who are Black falls far short of its nearly 30% Black population.

At one point, the conversation turned to a question of whether reforms were needed to solve ongoing and actual issues, or if shining more light on the selection process would quell public concerns.

Many say they feel South Carolinians’ confidence in the system has waned.

“The appearance of undue, too much politics at play is what gives the general public a sense that it’s not necessarily being done the right way, and until we can remove that and restore that confidence, I think we’re going to continue to have problems,” Rep. Russell Ott, D – Calhoun, said.

Attorney General Wilson said his goals include boosting public confidence and addressing the imbalance of power between the legislative and executive branches in this process, saying the executive, of which Wilson’s position is a part, currently has none.

He added calls for judicial reform were not a knock against the judges currently sitting on the bench.

“Saying the system occasionally produces good judges is like saying, ‘I played Russian roulette and I didn’t blow my head off, therefore it’s good to continue playing Russian roulette,’” Wilson said.

At the close of the hour-and-a-half-long meeting, Wilson pledged to put his influence toward helping those legislators advocating for judicial reform.

“I will drive to your district, wherever you are in the state. I will put money behind this thing to promote it to the public, whatever we decide to it. I will host meetings. I will sit in the back of the room, I will sit in the front of the room,” Wilson said. “I don’t care who gets credit; I just want it to happen.”

Multiple bills have already been filed to enact some level of judicial reform, but none of them advanced this year, the first year of a two-year legislative session.

The General Assembly is not scheduled to return to Columbia until next January to begin the second year of the session.

One option that likely is not on the table is having voters elect judges, as there is not much support for popular elections among state leaders or lawmakers.

Gov. Henry McMaster, another proponent of judicial reform, has voiced his support for giving the governor the power to appoint judges with senators’ approval.

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