Key lawmakers to push new way for S.C. to pick judges

State lawmakers who saw last year’s judicial reform bill as only a small first step toward fixing a fundamentally broken system will return to Columbia in January with sweeping new legislation and a deep-pocketed businessman’s political operation backing their efforts.

The new bill, which is expected to be prefiled by December in both chambers by a group of powerful sponsors including S.C. House Speaker Murrell Smith, R-Sumter, and Sen. Wes Climer, R-York, was outlined in a press release this week by DOGESC, a conservative political action committee founded by Lowcountry entrepreneur Rom Reddy.

Reddy, who’s best-known for his bitter and long-running legal battle with state environmental regulators over a seawall behind his Isle of Palms home, pledged to “partner openly with legislators, stakeholders, and citizens to co-sponsor and push the bill through both houses during the upcoming legislative session.” Just days after the DOGESC announcement, , in the latest turn of his ongoing court fight, a judge ruled that Reddy must remove the contested sea wall, but quashed a $289,000 civil fine imposed by the S.C. Department of Environmental Services.

Part of a larger project

Supporters say the judicial reform effort is part of a larger project to address a structural deficiency in the state’s 1895 constitution, which granted the legislature virtually unchecked power over the judicial and executive branches. In the case of the judiciary, they argue, that has led to a judicial selection process in which the legislature effectively hires and fires state judges without any of the checks and balances that exist in other states and at the federal level.

To address that issue without running afoul of the state constitution, the new legislation would give authority to the governor to appoint all 12 members of the Judicial Merit Selection Commission (JMSC), the body that nominates judicial candidates for election by a majority vote of both chambers. Under last year’s reform bill, the commission was expanded from eight to 12 members, with the governor appointing the four new commissioners while lawmakers retained control of two-thirds of the seats.

More controversially, the new proposal would also prohibit sitting legislators or their immediate family members from serving on the commission — a move supporters say is necessary to end what they call the corrupt custom of lawyer-legislators practicing in front of judges whose appointments and reappointments they effectively control.

“If you go to court and you’re on the other side of a lawyer-legislator, you don’t have a prayer,” Reddy said in an Oct. 23 interview. “I’m not saying the judges or the legislators are bad, but if you put people in a broken system, you get broken results.”

S.C. House Freedom Caucus Chairman Jordan Pace, a Goose Creek Republican whose decision to co-sponsor the new legislation with a House speaker he’s publicly feuded with on more than one occasion, is seen as a measure of its broad support. He echoed Reddy’s concerns in an Oct. 24 interview.

“Anybody can see the conflict of interest,” Pace told Statehouse Report. “If Clemson or USC gets to pick the referees, the other side is going to say this isn’t fair, because it’s not.”

What’s the big problem?

But at least one lawyer-legislator, House Minority Leader Todd Rutherford, D-Richland, calls those concerns overblown, noting that not a single judge selected through the legislatively dominated JMSC process has been convicted of public corruption.

“I’m still trying to understand the evil this bill is supposed to fix,” Rutherford said on Oct. 24. “I read articles from other states about all the judges being indicted, charged, convicted, but I don’t see that in South Carolina.”

What’s more, he argued, giving a governor more power over the process would lead to a whole raft of unintended consequences, including the nomination of political cronies and high-dollar donors.

“We have the best of all bad systems,” Rutherford said. “Do we want someone picked because they gave money to the governor or because they support or oppose abortion? Is that really what we want?”

Charleston Republican Sen. Chip Campsen a lawyer-legislator who introduced legislation in 2023 that would have allowed the governor to directly nominate judges with vetting by the JMSC and a majority vote of the legislature, argues that the underlying balance of powers issue must be addressed to protect citizens against legislative overreach.

“It’s like putting three crabs in a bucket,” he said. “When one crab starts climbing out of the bucket, what happens? The other two grab him and hold him down. That’s the brilliance of the founders, and it’s what makes our system work.”

That’s an argument incumbent Gov. Henry McMaster has made throughout his two terms and developed at length in a signing statement accompanying last year’s modest reforms.

“Entrusting a single branch of government with effective control over the screening and selection of candidates and exclusive control over their election,” McMaster wrote, “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.”

In an Oct. 24 email exchange with Statehouse Report, McMaster spokesman Brandon Charochak said the governor’s position on the issue remains unchanged.

“Governor McMaster has been advocating for this for years, and he is pleased to see others are joining him,” Charochak said.