GOP POLITICAL activist Rusty DePass sent me an oped column recently about the S.C. Supreme Court decisions that kicked 250 challengers off the ballot, many for doing what state and party officials told them to do rather than what state law required.
It was a typical rage-against-the-system piece that this whole mess understandably inspires. Right up until the 13th paragraph, when he made this extraordinary charge: “What makes this decision so scandalous is that it was arranged at the highest councils of the state legislature and the state court system in an effort to protect certain members of the legislature.”
Now, there’s nothing out of the ordinary about accusing legislators of manipulating the law for their political benefit. It’s not illegal, or even unethical. To a greater or lesser degree, they all make decisions designed to “protect” themselves.
But when you say that a Supreme Court decision was “arranged” “in an effort to protect certain members of the Legislature,” you are accusing the justices of engaging in a conspiracy to twist their ruling in order to benefit chosen legislators. That would be a breach of ethics in the highest sense, a violation of the judicial oath of office and potentially misconduct in office. To accuse the justices of this is to say that they should be disciplined by the court. And impeached. And prosecuted.
What’s remarkable is that Mr. DePass offered nothing to back up his allegation. Or rather, that should be remarkable.
In fact, he’s far from the only one who has felt free to make the leap from “I don’t like this ruling” to “This ruling proves that our court is corrupt,” without offering so much as a plausible theory to back up the allegation, much less any evidence to prove it.
The libertarian S.C. Policy Council has launched an ambitious campaign to change the state’s judicial selection process based on the “corruption” that the Supreme Court’s May and June ballot rulings allegedly represent, and legislative candidates across the state are parroting its talking points. And again, no one feels any compunction to provide the missing link between “ruling I don’t like” and “corruption.”
When I told Mr. DePass he needed more than his own dislike of the decision to suggest that it was an effort to protect legislators, his response was anything but sheepish: “It is common knowledge that Jean and Jakie have been buddies for years.” His reference, of course, is to Chief Justice Jean Toal and Sen. Jake Knotts, whose friends brought the first lawsuit to force his GOP primary opponent, Katrina Shealy, off the ballot. (She worked her way back on as a petition candidate.)
Mr. DePass said the chief justice “has a completely corrupt approach to election law,” noting that once, when he was chairman of the state Election Commission, he had to get the Legislature to rewrite a law to “overturn” her decision — which some might see as having the Legislature fix its own badly written law after the court refused to do that for it. (Mr. DePass’ column, absent the allegation of corruption, appears on today’s Commentary page.)
The first problem with this theory is that Ms. Toal recused herself from the original case, because the lawsuit was brought by her cousin. (The second ruling merely ordered the political parties to actually obey the first one.) Critics, I’m sure, would say that the court is Ms. Toal, whether she is robed or not.
The second problem is the leap from “friends” to “corruption.” Let’s assume for the sake of argument that the chief justice and Mr. Knotts are in fact buddies. That doesn’t prove, or even indicate, that anything is amiss. Ms. Toal’s court has slapped Mr. Knotts around pretty hard in at least one significant case, and has slapped the Legislature around even harder in several cases.
More to the point, mere friendship is not a conflict. If it were, in a state this small, with a legal community as small as ours, our courts would never hear any cases, because the judges would have to recuse themselves every time out. A conflict occurs when a judge has a relationship with a party to a case such that ruling in that party’s favor would benefit the judge.
This is where the Policy Council points to our judicial-selection system, which requires judicial candidates to be nominated by a 10-member screening commission — on which Mr. Knotts serves — and elected and reelected by the Legislature. I agree that there are many problems with this system, one of which is that then-Senate President Pro Tem Glenn McConnell would appoint someone of Mr. Knotts’ temperament to serve on the commission.
But while giving one of the two political branches complete control over judicial appointments might indeed tempt some judicial candidates and lower-court judges to ingratiate themselves to the commissioners, the one group of people who have no need to do that are the justices on the Supreme Court.
Since 1893 — and that’s not a typo — only one justice has even been challenged for re-election. That was Ms. Toal, whose 1996 opponent dropped out of the race within hours of its beginning, when it became clear that she had easily rounded up the votes to defeat him in a landslide.
One constitutional law expert told me it was particularly absurd to try to build a corruption argument on this case.
“Frankly it was the right answer,” he said. “I don’t even know how you can make that charge if it’s the right answer. There could only be corruption if it’s really so out there in left field that its not even legally supportable, whereas that isn’t the case at all here.”
In fact, the closest the court has come to left field was last week’s 3-2 ruling that authorized the Republicans to hold a new primary for a Charleston Senate seat after their once and future candidate, Paul Thurmond, was declared ineligible. The majority opinion was just bizarre, the dissent powerful and convincing. But the result of the ruling is that the GOP is likely to keep a seat that a week ago it looked like it would lose, so of course we haven’t heard anyone on the right complaining.
Could the justices have found a way to avoid kicking all those other candidates off the ballot? Perhaps.
They might have decided that requiring most challengers and no incumbents to file paper copies of their economic-interest statements when they filed for office violated the constitutional guarantee of equal protection (though that’s not the slam-dunk case that critics make it seem). They might have decided that candidates should not be penalized for doing what they were told to do by the state agencies that enforce the law and the party officials to whom the law delegates official duties. They might have tolled the effect of their ruling until the next election, so as to avoid disruption.
The problem is that those aren’t the arguments that the lawyers arguing the case made; they argued that the law didn’t really apply, or that the court should simply ignore it, or pretend that it was in conflict with the more recently written law, even though it wasn’t. So in order to come up with the result that Mr. DePass and the Policy Council and I would have preferred, the court would have had to bring up one of those arguments itself.
That’s getting awful close to what I call being an activist, results-oriented court. And that’s the sort of thing that drives conservatives crazy — at least when it suits them to be driven crazy.
Ms. Scoppe can be reached at firstname.lastname@example.org or at (803) 771-8571.