Former SC judges say lawyer-legislators intimidate, pressure judicial candidates
After 15 years on the bench, Judge Tommy Russo’s career in the South Carolina Circuit Court came down to an ultimatum:
Withdraw his bid for reelection and resign from his seat, or a panel primarily composed of powerful lawyer-legislators would expose details about his candidacy, suggesting that he was a liar and biased.
Russo’s offense? An old Facebook post referencing two former presidents and their stances on illegal immigration, a post for which Russo had already been cleared of any wrongdoing by a state judicial ethics commission. Or maybe, according to a fellow judge who had warned Russo, his real offense was crossing one of those lawyer-legislators in his own courtroom.
In November of 2019, Russo says he was worn down and intimidated by the Judicial Merit Selection Commission, a 10-member legislatively controlled panel that screens and recommends judicial candidates and that is now under scrutiny by a number of state leaders, including the state’s top prosecutor.
Russo’s story is one of many that some state prosecutors say showcase a pattern of abuse of power by some lawyer-legislators serving on the JMSC. Critics argue those lawyer-legislators have systematically leveraged their positions to wield undue influence over state judges, skewing the state’s courts in favor of those who can make or break a judge’s career.
Russo described being humiliated and pressured behind closed doors to step down from the bench after he had already been elected and reelected three times previously.
The pressure applied to Russo was one of multiple examples described in a five-hour hearing last week, where the state’s top elected prosecutor, Attorney General Alan Wilson, along with state solicitors David Pascoe and Kevin Brackett, began laying out a case for why they say South Carolina’s process of selecting judges must be changed. A newly created committee of state lawmakers will, over the course of several months, study the case for judicial reform.
“I have had many judges in the last two years, as I’ve gone around the state talking about this issue judicial reform, call and tell me, and this is a verbatim quote from one of them, ‘Any judge who tells you they don’t worry about offending a JMSC member in their courtroom is lying to you,’” Pascoe, the state’s 1st Circuit solicitor, said during last Tuesday’s committee meeting.
For the first time publicly, the solicitors backed up those claims with specific examples they say prove the undue influence of lawyer-legislators on the JMSC, including Russo’s story.
At the center of this storm are a handful of influential lawmakers who are practicing attorneys either currently or formerly serving on the JMSC. Among those are former JMSC chairman and current state House Speaker Murrell Smith, and state Rep. Todd Rutherford.
Rutherford maintains there were numerous strikes against Russo for his temperament and alleged unfair treatment toward women – “It should have been clear to Stevie Wonder that he was not going to get the votes necessary,” the Richland County Democrat said in a recent interview with The State, defending the JMSC’s pressure on Russo to withdraw his judicial candidacy in 2019.
When “a judge states political comments on their Facebook profile, berates lawyers in court – not according to me, but according to those lawyers – and treats women in a disrespectful manner, they lose their ability to call balls and strikes,” Rutherford said.
But Russo says when he was first elected, he was under the impression that the lawmakers who elected him to office simply wanted him to umpire the court without regard to what attorneys stood before him.
“My belief,” Russo said, “was when they appointed me, they appointed me just like a major league baseball umpire: ‘We want you to call balls and strikes.’ If the ball is across the plate, it’s a strike. If it’s not, it’s a ball, and it doesn’t matter who’s batting and it doesn’t matter who’s pitching.”
A ‘good’ selection process
First elected to the South Carolina Circuit Court in 2005, and reelected twice since then, Russo said he he believed the state’s judicial selection process was “good.”
He doesn’t believe that anymore.
In what some called an unusual move, on Nov. 18, 2019, members of the Judicial Merit Selection Commission, during a public hearing involving judicial candidate interviews, went into a closed-door session while interviewing Russo.
“Now, it was just me and the commission members. It was like a light switch: the meeting went from being cordial to mean,” Russo recalled to The State.
Russo said members raised an issue about a Facebook post he’d made in 2016, which had spurred an investigation by the S.C. Commission on Judicial Conduct.
In the Facebook post, Russo defended Donald Trump’s stances on “illegal immigrants” in light of a comparison being made between Trump and former President Bill Clinton.
Trump, Russo wrote on Facebook, “is being ripped to shreds for having the exact same position as Bill Clinton expressed regarding his position on immigration. The hypocrisy and the favoritism that the left wing main stream media uses to cover President-elect Trump is undeniable except by those who ARE the left wing liberals.”
Ultimately, Russo was cleared of any wrongdoing by the Commission on Judicial Conduct. But now, several years later, that Facebook post was being resurfaced. Some members of the JMSC, now determining whether Russo would be reelected to his seat, said the post demonstrated Russo’s inability to remain apolitical and impartial, a fundamental rule in judicial conduct.
“Maybe they took (my post) as defending Donald Trump, I don’t know,” Russo said. “But the thing is, every judge has a political idea or position. I mean, we don’t get involved in politics, but we all go to the voting booth and vote for somebody on election day.”
Russo agreed to provide the panel a printout of all his Facebook posts dating back seven years. The closed-door meeting then concluded, and the panel reconvened two days later, when Russo once again stood alone before the commission.
This time, Rutherford raised another issue involving Russo’s Facebook account, accusing Russo of previously lying to the judicial conduct commission about whether he represented himself as a judge on his Facebook page.
“I said, ‘No, sir, that wasn’t a lie,’” Russo said. “First of all, you’ve just gone back and reviewed seven years of my Facebook posts, and after two days of digging through all of that, this is all you come up with to try to make me out to have lied to the council?”
Russo noted that the JMSC had previously approved judicial candidates who were accused of more egregious conduct, including, he said, a former judge who was found to have had an affair with his law clerk.
To which, according to Russo, Rutherford said, “Let me be candid Judge Russo, you have two options: you can withdraw your application and resign, or we will go out of executive session and go back on the record in the public, and we will expose all of these lies and all of this bias to the public.”
Rutherford, speaking recently with The State, said it was a benefit to a candidate such as Russo to allow him to resign “rather than give a get a ‘no’ vote, which would scar them forever.”
Following Rutherford’s ultimatum, Russo said he was given five minutes to confer with his wife about the matter, and he hastily decided to withdraw from the race. In a hand-written note, he resigned from the bench.
It was a decision, however, Russo later tried to recant, but to no avail.
“I went and talked to a lawyer who tried to help, but we were stonewalled at every turn,” Russo said. “Hindsight is 20/20. If I could go back, I would’ve said, ‘This should have never been taken out of a public hearing. You want to put me back in front of the public and let’s go over all this stuff. Let’s do it.’ That should have been my response.”
Solicitors mount examples of ‘rotten actions’ by JMSC
In a hearing spanning over five hours last Tuesday, Wilson, Pascoe and Brackett, respectively, testified before a special committee on judicial reform, highlighting multiple examples — including Russo’s story — of what they called “rotten actions” taken by certain lawyer-legislators serving on the JMSC.
“I had one judge call me recently within the last 18 months just to vent, almost in tears, telling me he was forced to give a JMSC member a continuance in a civil case because he feared that if he didn’t, he was going to lose his job when he had to go up front of the JMSC just weeks later,” Pascoe, the state’s 1st Circuit solicitor, said.
Russo’s story features a similar scenario.
In October of 2019, one month before Russo was due back before the JMSC, state Rep. Murrell Smith, R-Sumter — who, even during that time, prior to becoming House speaker, was a powerful lawmaker, serving as chairman of the JMSC and the House budget committee — appeared before Russo to argue against a motion for a new trial in a case involving a $21 million verdict against Dominion Energy.
Prior to the verdict, Russo said Smith had no involvement in the case, but in allowing the plaintiffs to couple their written arguments with oral arguments in opposition to the motion, Smith suddenly appeared in court on behalf of the plaintiffs.
“When I stepped on the bench that morning, I was surprised to see Murrell,” Russo said. “I thought he might’ve just been there to listen in, but he ended up arguing the motion. Well, I ended up ruling in favor of the motion, against (Smith) because it was the right call, there’s no question in my mind.”
One month later, Russo appeared before the JMSC for reelection, and Smith recused himself as chairman over Russo’s hearing without explanation, passing the gavel instead to JMSC Vice Chairman state Sen. Luke Rankin.
“I didn’t understand why he would recuse himself, but he did,” Russo said.
Acknowledging his recusal, Nicolette Waters, spokesperson for Smith, told The State, “Contrary to the implications recklessly thrown around at last week’s hearing, Speaker Smith ... played no part in any of the processes surrounding (Russo’s) situation.”
Roughly a year following Russo’s resignation, he was replaced by Judge Steven DeBerry, a first-cousin to Smith.
During DeBerry’s screening before the JMSC, Smith was asked if voting for his cousin would be a conflict of interest. Smith said no, because DeBerry was not an immediate family member, but he ultimately abstained from voting on DeBerry’s candidacy, saying, “It’s probably best that if he’s going to be qualified that he does it on his own merit.”
Another example that Russo called questionable involved Rutherford, who appeared before Russo in a criminal case where Kieran Davis, accused of murdering a Dutch Fork High School student in 2014, was petitioning for immunity against prosecution for the murder, under South Carolina’s stand-your-ground law.
Russo ruled against Rutherford in that hearing, and, upon going to trial, Davis was ultimately convicted.
Months later following Russo’s ruling against Rutherford, Russo said a fellow judge asked him, “What did you do to piss off Todd Rutherford?”
“I said, ‘What do you mean? I have had nothing but pleasant interactions with Rutherford, I’ve never had a cross word with him,’” Russo said. “To which my colleague responds, ‘Well, Todd’s made the comment that you’re gonna get yours.’”
Rutherford denied the exchange and called it “absurd.”
“It’s absurd that any lawyer would talk to a judge that way,” Rutherford said, pointing to multiple instances where judges ruled against him and were still later approved by the JMSC.
Specifically, Rutherford said Circuit Judges Robert Hood, Alison Lee and Daniel Coble have all previously ruled against him and have all since been successfully vetted through the JMSC.
“They’re not ruling against me,” Rutherford said. “They’re ruling for or against my client, and there’s no way for me to take that personal. This is an adversarial system, where a judge is put in charge of calling balls and strikes.”
‘A backstory involving disgruntled JMSC members’
“The perception among my peers and other members of the bar is that there’s always a backstory involving a disgruntled JMSC member,” Pascoe said. “A JMSC member who had a judge in their line of sight and they wanted to take him out.”
In another example, Pascoe shared with lawmakers the story of former Judge Kristi Harrington of Charleston, who, like Russo, was “forced to withdraw” from the judicial selection process.
In 2017, Harrington, who had been on the bench for 10 years, denied a last-minute request by then-state representative and JMSC member Peter McCoy for a continuance in a murder trial. The case involved out-of-state witnesses and had been on the court’s docket for years, according to Pascoe.
“She knows McCoy (is) upset,” Pascoe told lawmakers. “And not long after she hangs up the phone with Mr. McCoy, she immediately calls a another circuit court judge, a good friend of hers, and says, ‘I’m in trouble.’
“That is not an independent branch of government. That is the judiciary scared that they’re not going to get to keep their job because they offended a JMSC member right before she has to go in front of the JMSC.”
Indeed, during Harrington’s interview before the JMSC, Pascoe said commission members berated, threatened and intimidated her, accusing her of having improper contact with unspecified members of the General Assembly. She had also received a deluge of anonymous complaints from attorneys objecting to her “judicial temperament.”
More than 40 attorneys showed up in defense of Harrington’s candidacy during her hearing before the JMSC, but none of them were permitted to testify in her favor.
Ultimately, Harrington decided to withdraw her name from consideration after Rutherford said she refused to answer under oath whether she’d been in contact with members of the General Assembly during her candidacy, which under South Carolina law is a criminal offense.
“I really want my story to be an example of the need for the process in (selecting judges) to be better,” Harrington told The State. “We can’t have meaningful change in South Carolina, if we don’t have qualified and competent judges.”
“Last week, it was discussed how the JMSC ‘weeds out bad judges and that the JMSC should be commended, not condemned for not having bad judges reelected,’” Pascoe said. “I could not disagree more. The JMSC process is rigged, and a process that I can’t even understand the rules of because they seem to change depending on the candidate. And I can tell you that from my own experience in dealing with the JMSC, and it contradicts the purpose of what being qualified means.”
As for Harrington and Russo, who both began working as mediators following their departure from the bench, they’re hopeful that their stories will not only shed light on what some call a corrupt process, but also will also create an opportunity for a wider range of people to serve in the judiciary, who currently say they’re scared to throw their names in the hat.
“I really want there to be an opportunity for people to understand the (judicial selection) process and to allow the process to be changed in a way that is beneficial to our justice system, allowing an opportunity for everyone to participate in the process that wants to be a judge or a member of the JMSC,” Harrington said.
This story was originally published November 21, 2023 at 12:16 PM.
