See how they run

Continuing coverage of South Carolina's bar exam scandal (parts 1, 2, and 3)
Lost causes, upon further reflection, may not be as forlorn as they might have first appeared. Not Very Bright's survey of the South Carolina press, including op-ed columns and letters to the editor, reveals a reasonably healthy skepticism among journalists and members of the general public in that state. Despite taking extreme care not to impugn the South Carolina Supreme Court's "integrity," The State is willing to declare that the court "exercised poor judgment" in its handling of South Carolina's July 2007 bar exam. An apparent majority of The State's corresponding readers take even sharper issue with the Supreme Court. A Hilton Head newspaper has argued that the Court's "explanation" of its decision "raises more questions" than it answers. As MoneyLaw has already reported, the Greenville News argues that the Supreme Court's reasoning flunks fifth-grade logic and morality. And then there is this editorial cartoon in The State:


The most skeptical voice in the debate, so it seems, is one Gregory Kestor, who laid down a challenge to me in the commentary to Lost Causes:

What are you, Jim Chen, Dean of the Louisville Law School, prospective Man of Destiny, going to do about it? The Gang of Five on the SC Supreme Court, is doing what Law does best: speaking power to truth. What are you going to do about it? My bet: nothing more than has appeared on this blog.

Mr. Kestor, you lose. You seem to have forgotten that I, having been a "Southern boy fourteen years old," can summon "not once but whenever [I] want[] it" the spirit of that "instant when it's still not yet two o'clock on that July afternoon in 1863." Ambition and action, one and inseparable, now and forever. I'll take my stand.

I think that the good people of South Carolina, supported by lawyers and believers in the rule of law everywhere, are looking for some way to salvage something good from this shameful episode. I believe that the answer lies in holding each of these jurists accountable for their decision to admit one and twenty concededly unqualified individuals to the South Carolina bar:

• Chief Justice Jean Hoefer Toal
• Justice James E. Moore
• Justice John H. Waller
• Justice Costa M. Pleicones
• Justice Donald W. Beatty

Alas, the Constitution of South Carolina is less than fully helpful. Article V, § 3 directs that the members of the South Carolina Supreme Court be elected by members of that state's General Assembly:

The members of the Supreme Court shall be elected by a joint public vote of the General Assembly for a term of ten years, and shall continue in office until their successors shall be elected and qualified, and shall be classified so that the term of one of them shall expire every two years. . . .

South Carolinians who are willing to hold their Supreme Court Justices accountable have no direct recourse at the ballot box. They must rely on members of the General Assembly to do their work. One of the chief players in this morality play, the Judiciary Committee chairman, is unlikely to take any action that would imperil the Supreme Court seats of the Justices who ordered his daughter admitted to the bar.

Etymology of senate

c.1205, "legal and administrative body of ancient Rome," from O.Fr. senat or L. senatus "highest council of the state in ancient Rome," lit. "council of elders," from senex (gen. senis) "old man, old" (see senile). Attested from c.1374 in ref. to governing bodies of free cities in Europe; of national governing bodies from 1560; specific sense of upper house of U.S. legislature is recorded from 1775.

Fortunately, what Neil Young told Alabama nearly four decades ago is equally true for South Carolina: "You've got the rest of the union / to help you along." The problem of a powerful body whose members enjoy long terms and are themselves elected by some other legislative entity is a familiar one in American history. The original United States Constitution of 1787 did not permit the direct election of United States Senators. Rather, members of the Senate were "chosen by the Legislature" of each state. A 1914 amendment to the Constitution fixed this problem. The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase "chosen by the Legislature thereof" with "elected by the people thereof":

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. . . .

What we now need is a comparable amendment to the South Caroina Constitution.

Imagine this revision of Article V, § 3 of South Carolina's constitution:

The members of the Supreme Court shall be elected by a joint public vote of the General Assembly the qualified electors of the State for a term of ten five years, and shall continue in office until their successors shall be elected and qualified, and shall be classified so that the term of one of them shall expire every two years year. . . .

Replacing the existing phrase, "a joint public vote of the General Assembly," with these words, "the qualified electors of the State," is enough to transform the South Carolina Supreme Court into a body chosen directly by the voters of South Carolina. I've recommended a halving of the Justices' terms, strictly on the sense that a decade is an extremely long time for anyone to serve, with no accountability besides impeachment, on a putatively democratic tribunal.

Of course, the primary method for amending South Carolina's constitution, Article XVI, § 1, itself requires the cooperation of the General Assembly:

Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives. . . . The amendment may delete, revise, and transpose provisions from other articles of the Constitution provided the provisions are germane to the subject matter of the article being revised or being proposed. If it is agreed to by two-thirds of the members elected to each House, the amendment or amendments must be entered on the Journals respectively, with the yeas and nays taken on it and must be submitted to the qualified electors of the State at the next general election for Representatives. If a majority of the electors qualified to vote for members of the General Assembly voting on the question vote in favor of the amendment or amendments and a majority of each branch of the next General Assembly, after the election and before another, ratify the amendment or amendments, by yeas and nays, they become part of the Constitution. The amendment or amendments must be read three times, on three several days, in each House.

Why do I think South Carolina's General Assembly would amend the state constitution when I concede that they are unlikely to be responsive to direct challenges to the incumbent members of the Supreme Court? Because the case for reforming the Supreme Court's structure is worthy and can — and should — be advanced without reference to this year's bar exam scandal. I'll couch this sentiment in language that the Justices themselves would recognize and, mutandis mutandi, very recently adopted as their own:

No consideration will be given to the identity of any Justice who would stand to suffer from this action. Moreover, this action is not influenced by any appeal, campaign, or public or private outcry. It is simply deemed the best choice among several alternatives.

All together now, South Carolina. Make your Supreme Court Justices stand for election. See how they run.