Why There Are Two Prosecutors in the First Place

March 31, 2016

Inside Insight

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Remember, our judiciary is far from independent.

As the ongoing battle between Attorney General Alan Wilson and Solicitor David Pascoe rages on, we thought it might be worth remembering why the whole controversy is even a controversy. Leave aside the question of culpability in the ongoing spat and recall what led to the introduction of a second prosecutor in the grand jury case against former Speaker of the House Bobby Harrell.

The cause was this: A state judge tried to throw the attorney general off the case on the highly dubious grounds that the A.G. was “conflicted.” That ancillary hearing was almost held in secret, but those plans were discovered by The State‘s John Monk and the hearing was made available to the public. We were there, and we have no trouble in saying that the charge that Wilson was “conflicted” was transparent fiction.

We mention all this, to repeat, not to make any observation on the ongoing controversy, but simply to say this: Judges in South Carolina are unilaterally chosen by the legislature. That they frequently act in the political interests of legislative leaders – of the officials who put them into office, in other words – is not the sort of consideration likely to give South Carolinians much faith in the independence of their judiciary.

Consider:

  • South Carolina is one of only two states in the nation (the other is Virginia) in which the legislature is involved in both the nominating and appointment process of state judges.
  • South Carolina is only one of 13 states in the U.S. without the American Bar Association-supported “merit selection” process for electing state judges.
  • South Carolina is one of two states (the other is Tennessee) in which the judicial nominating committee is appointed by the legislature. Only one other state (Virginia) appoints judges to both the Supreme Court and Court of Appeals by legislative appointment.
  • South Carolina is the only state in which the legislature has appointment powers for an unexpired judicial term.

To illustrate the unique dominance South Carolina’s General Assembly holds over the judicial appointment process, also consider:

  • Forty-five states allow the governor to participate in some fashion in filling unexpired terms.
  • Twenty-six states allow the governor to participate in full term appointments.
  • Five states allow their governor to participate in methods of retention of judges.

To sum up: South Carolina does not have an independent judiciary. State judges, through no fault of their own, are put in office by the grace and favor of lawmakers. Thus, when the state’s top prosecutor goes after a legislative leader, he’d better watch out. The judges before whom he will argue may not see things with the kind of objectivity one expects from judges.