I'm done with secret judicial elections. It's time to end them now, so in a letter today to House and Senate leadership, I vowed to make the current election process as painful as possible until this terrible practice is ended.
It's taken me four judicial elections over the last two years to catch on, but there is a nasty little vote-hiding scheme that consistently costs conservatives judges the election.
I’ve had my education and intelligence insulted, just for daring to ask candidates if they complied with Article VI, Section 2 of the South Carolina Constitution.
A Challenge for the Next Speaker of the House Note: a previous version of this post indicated the Governor plays a role in judicial selection, but this is factually incorrect. This post has been corrected.
Sometimes, I’m a pretty embarrassed South Carolinian. Though we could be described, at least here in the Upstate, as “the buckle on the Bible Belt,” we have a way of frequently making unpleasant political headlines.
It started with a former Governor, now Congressman, who said he “hiked the Appalachian trail” when he was actually visiting his “soul mate” who was not his wife (a saga that is still playing out like a soap opera), to a Lieutenant Governor forced to resign in disgrace after multiple campaign finance violations (in the private sector, this is known as “embezzlement”), to 8 Sheriffs in the last 4 years indicted or investigated for a variety of fraudulent behavior, including racketeering and bribe-taking, finally climaxing in the indictment of Speaker of the House Bobby Harrell just days ago for violations that dwarf those of former Lieutenant Governor Ken Ard.
But what you won’t hear in the media is the greatest corruption of all: our very system of government is compromised.
Oh, we make a show of the three-branch balance of power that our founders bequeathed to us. Yet, as Lawrence Lessig put it, “We inherited an extraordinary estate. On our watch, we have let it fall to ruin.”
The truth is that South Carolina more closely resembles an oligarchy than a republic.
As far back as the Civil War, the Palmetto State’s ruling class loathed the idea of a black governor, so they divested the governorship of most executive functions. Who were the recipients of this power? They were, of course--the legislators.
“Are you suggesting that the legislature does the work of two branches of government?” you ask. Of course not! That would be hard work. Instead, the legislature appoints a confusing and sometimes redundant array of hybrid, unelected board and commissions. Some of these are entities unto themselves; others perform executive oversight of entire state agencies, such as the Department of Transportation.
And one of these picks our judges.
The Judicial Merit Selection Commission
You’d think the Governor would appoint our judges. She does not. Instead, the Judicial Merit Selection Commission, which is itself comprised of a majority of legislators, screens candidates and submits a list of "approved" nominees to the joint House and Senate body for election.
By contrast, the President of the United States and many other state Governors appoint judges, who must then be confirmed by the respective Senate bodies. South Carolina is the only one out of fifty states with such an odd system.
As Rep. Kenny Bingham, a candidate running for Speaker of the House, put it to me: “We can’t give the Governor that much power.”
Thus is the mentality of many of our lawmakers. It’s their power, and no one else should have it. No matter that it’s a bastardization of the Republic that our founders gave us so many years ago.
Tracing the ties of power
Five of the ten members of this board are directly appointed by the Speaker of the House. The other five? Appointed by the Senate.
Now, imagine a scenario where the Chief Justice of the SC Supreme Court is up for re-election, and the Speaker of the House appoints House members to the Judicial Merit Selection Committee who are beholden to himself for their coveted House committee assignments, and also appoints his own brother. Let us further imagine that the Speaker is indicted for charges which could easily be appealed to the SC Supreme Court.
Do you think said Speaker will get a fair trial? Maybe a little too fair, if you get my drift?
Perhaps all 5 of Harrell’s appointees are good people. Corrupt systems often employ generally decent people. As Lessig writes in his book, “Republic, Lost:”
“[C]orruption does indeed wreck our democracy. Not a corruption caused by a gaggle of evil souls. On the contrary, a corruption practiced by decent people...people working extremely hard to do what they believe is right, yet...extraordinary bad gets done. This corruption has two elements...the first element is bad governance, which means simply that our government doesn’t track the expressed will of the people...on this account, [democracy] seems to a show or ruse; power rests elsewhere. The second element is lost trust: when democracy seems a charade, we lose faith in its process.”
Lost trust. Funny choice of words. (Look up “Operation Lost Trust” if you don’t know what I’m talking about.)
Oh, and did I mention that many South Carolina lawmakers are also attorneys, who, in their own law practices, will stand before the very judges they elect? Is it not enough that the lawmakers write the law? Must they also choose the judges?
Can we trust such a system?
“There are a thousand hacking at the branches of evil to one who is striking at the root.” Henry David Thoreau
Literally moments after Speaker Harrell’s indictment was announced, Representatives of ambition began scrambling to line up votes for themselves. Amidst the melee, a call to change House procedures went out. Rep. Tommy Stringer wrote:
“At a minimum, the new Speaker should lead the reformation of House Rules to limit the number of terms a member can serve as Speaker, to limit the number of terms a member may serve as a committee chairman, and to expand the number of standing committees so that the State may benefit from the talents of the broadest number of Representatives as possible. I will not vote for any member running for Speaker who does not, at a minimum, strongly support and act to achieve these reforms.”
A few days later, Interim Speaker (and Speaker candidate) Rep. Jay Lucas appointed a “Special House Rules & Procedures Review Ad Hoc Committee” presumably to draft and propose potential rule changes.
This sudden move to reform House procedure was described by Rep. Nathan Ballentine as “a signal of a new day in the House...a breath of fresh air.”
I, for one, agree there is a need for things like term limits on the Speaker. However, I cannot help but be skeptical, and wonder if this could prove a diversion from a much greater problem: judicial dependence.
To the current Speaker candidates, Reps. Jay Lucas, Kenny Bingham, and Jim Merrill, hear me:
If you wish to rise above the previous speaker, to restore faith and trust in the SC House, and do more than whitewash a corrupt system, you MUST amend the SC Constitution to achieve judicial independence, which means, at a minimum, completely abolishing the Judicial Merit Selection Committee, divesting yourself of the inordinate power which you should never have had over this process and allowing the Governor the full power to appoint Judges with the advice and consent of the Senate, as our founding fathers (who were all much smarter than any of us) intended.
Only then will we begin to strike the root of the greatest corruption of all.