Harsh words cite public safety as lawmakers spar over judicial election delay

On a day when state judges are traditionally elected, political grandstanding ensued, including threats of worsening an already clogged state criminal justice system.

After learning Tuesday that Senate members would not move forward with judicial elections without judicial reform, House Speaker Murrell Smith, R-Sumter, delivered a scathing speech Wednesday, signaling an impasse, citing more than 20 vacancies on the state’s circuit court, which could potentially backlog criminal and civil cases further.

The move could mean “delayed justice” for South Carolinians.

“If you claim to be for (judicial reform), that’s your prerogative,” Smith said on the House floor, referring to the Senate. “But destroying the current system to make the case for change still destroys the system and puts the public in harm’s way. I’m pleading with my colleagues across the hall to simply do your job that you were elected to do.”

Smith’s remarks prompted Senate President Thomas Alexander, R-Oconee, to fire back.

“If the speaker of the House wants to accomplish what he says he wants to accomplish, his time might be better spent working with his colleagues in the Senate rather than demagoguing them,” Alexander said. “Mr. Speaker of the House, the Senate, as always, stands ready to work with you, but we do not work for you.”

Smith claimed the Senate’s decision to choke judicial elections threatens public safety by stalling a number of criminal court cases after July 1 due to a potential increase in vacancies on the state’s circuit court. Unlike positions on the state’s Supreme Court, which enjoy a holdover status during pending vacancies, the same is not true of lower courts, such as the circuit court, which hear most cases.

“The state is at a very real risk of its criminal justice system coming to a catastrophic halt,” Smith said, pointing to an existing backlog of criminal court cases.

State Sen. Dick Harpootlian, D-Richland, a lawyer legislator and major proponent of judicial reform, said Smith’s remarks were disingenuous.

“I’m a consumer of this (judicial selection) process, and what I see and hear offends me,” Harpootlian said. “Hopefully, the speaker will wake up and smell the coffee on the fact we need to do something on judicial reform. Giving speeches about how the public is going to be in danger is irresponsible, because nothing happens (relating to judicial vacancies) until July 1.”

State Sens. Wes Climer, R-York, and Harpootlian, pointed to the “yawning gap” between now and July 1, insisting that the General Assembly has plenty of time to hold judicial elections after a judicial reform bill is passed.

“It’s the same as saying, ‘Oh, we don’t have a budget yet for 2024-2025 (which is due Jun. 30), so the state is going to shut down.’ I mean, it’s just irresponsible,” Harpootlian said

Smith said 24 circuit court vacancies would result if judicial elections aren’t held before July 1.

As of Nov. 30, 2023, South Carolina had a total of 175,167 criminal cases pending, according to data from S.C. Court Administration, which considers cases more than 365 days old as backlogged. Of the total number of cases, 81,854 are more than a year old, while 56,077 have been stale for more than 545 days, or a year and a half.

But the backlog has declined over the past two years. In 2021, the state reached an unprecedented level of backlog cases with 191,708 pending criminal cases on court dockets. That number decreased in 2022 to 179,100, and again in 2023 to 175,167.

Steps to unwind judicial blockade

Climer and Harpootlian both say judicial elections only proceeds if a bill on judicial reform passes the General Assembly.

Currently, several proposals are in the Senate, and most of them involves changing the makeup of the Judicial Merit Selection Commission — a 10-member body charged with considering judicial candidates’ qualifications.

The majority of proposals seek to address ongoing concerns raised about the transparency and perception of trustworthiness of the judiciary, and particularly concerns about what level of influence is held by lawyer-legislators who hold power over screening judges.

In a bill by Climer, S. 178, all legislators, lawyer or otherwise, would be excluded from the JMSC and would, instead, include the governor and six members of the public. It would also reduce the number of commissioners from 10 to seven.

Harpootlian has proposed a bill, S. 879, that would disqualify a legislator’s close relative from seeking a judgeship, remove the ability for members of the bar to submit anonymous complaints against judicial candidates, and prohibit candidates from withdrawing their candidacy once the JMSC begins vetting that candidate.

“It’s the appearance of impropriety,” Harpootlian told The State last December. “I’m not alleging there actually is impropriety, although there are certainly cases that raise huge questions, but the appearance of impropriety shakes the public’s faith in the judiciary.”

Harpootlian’s measure, like others, would also expand the number of judicial candidates eligible to be forwarded to the General Assembly for consideration.

The JMSC can currently recommend up to three candidates for each vacant judgeship. Harpootlian’s proposal would instead allow the committee to send an unlimited number of candidates to the Legislature for consideration.

Another proposal, S. 871, by state Sen. Mia McLeod, I-Richland, would require all legislators who actively practice law in the Palmetto State, to recuse themselves from voting in judicial elections. Like Harpootlian, McLeod also sponsored a measure — S. 872 — to remove the three-judicial-candidate cap the JMSC follows when it submits qualified candidates to the General Assembly.

Despite the variety of proposed measures in the Senate, Climer and Harpootlain said they’re confident the Upper Chamber can deliver on judicial reform in a matter of weeks.

“I’m confident that at the end of the day, the Senate will produce a bill that accomplishes the goals of remedying the conflict of interest (among lawyer-legislators) and giving the people of South Carolina more confidence in the judicial system,” Climer said. “But in the meantime, you should continue to expect those who profit most from the status quo to defend it most vigorously.”

Moreover, after a bill on judicial reform passes the Senate, Harpootlian said Smith has the power to bring that bill directly to the floor.

“Unlike in the Senate, (Smith) has the sole ability to set (bills) and have them voted on,” Harpootlian said.

Still, the House has been working to address judicial reform through several ad hoc committee meetings, where testimony by several key players, including S.C. Attorney General Alan Wilson, have offered solutions to correct problems associated with the judicial selection process.

“If the speaker is that concerned, he should move a bill that solves the problem,” Climer said.