Cindi’s thoughtful piece on SC chief justice contest

Someone was praising Cindi Scoppe’s column today on the contested election for chief justice of the SC Supreme Court, and I agreed: “Yes — Cindi’s probably the only journalist in SC who knows enough even to have the idea of writing it.”

You may be disappointed after that buildup to find that there’s no hard-hitting, simple editorial point in the piece, and she certainly doesn’t take sides between incumbent Jean Toal and challenger Costa Pleicones. The overall point is to lament the system we have for picking justices, and the lack of transparency in it after that one, brief, qualification hearing — which everyone knew that both of these exceptional jurists would pass with flying colors.

What she does is provide perspective on the court and its place in our, um, unusual system in South Carolina.The piece should be required reading for legislators, who will be the voters in this particular election.

The piece does a number of things. First, she explains that this is yet another chapter in Jean Toal’s precedent-breaking career, and I don’t (and she doesn’t) mean that in the facile sense of trailblazer for women, yadda-yadda:


Jean Toal

But things never have been normal where Jean Toal is involved, and by that I’m not referring to the fact that she was South Carolina’s first female justice and chief justice.

In 1988, she became the first non-judge elected to the high court in more than three decades. That happened after ethics questions derailed the candidacy of Circuit Judge Rodney Peeples, who entered the race with more than enough votes sewed up to win.

Eight years later, Mrs. Toal became the first sitting justice since 1893 to be opposed for re-election, when Circuit Judge Tom Ervin challenged her amidst anti-tax groups’ absurd efforts to paint her as a liberal; her support was so overwhelming that he dropped out of the race less than two hours after legislators were allowed to start making commitments.

Now she’s the first chief justice since at least the 1800s to be opposed for re-election…

Clearly, the Legislature will break precedent if it elects Mr. Pleicones. But even if it re-elects Mrs. Toal, the status quo already has been interrupted, making it much easier for lawmakers to break with tradition and skip over Mr. Pleicones and, who knows, perhaps skip over Mr. Beatty, possibly even select a chief justice who isn’t on the court….

In future SC history books, there will likely be quite a few footnotes devoted to Jean Toal.

As I said, while this piece may be interesting to other readers, it should particularly be read by lawmakers. Cindi takes it on herself a lot to put things into perspective for legislators. Someone needs to.

One key thing she explains — and these days we have more and more lawmakers who need this explained — is that there are important issues at stake here, but they have nothing to do with notions of left and right, Democrat and Republican, the way those things are force-fed to us today out of the Beltway:


Costa Pleicones

Some Republicans in the Legislature — and lots outside, particularly of what we now call the tea-party variety — have been grumbling for years about having a court full of former Democratic legislators.

I suppose it’s understandable that people would be confused about the role that partisan politics plays on the S.C. Supreme Court — none — given the diet of hyperpartisan Washington politics on which a frightening number of South Carolinians feed, forming not only their world views but their state views.

Although the U.S. Supreme Court is in fact composed of two well-defined ideologies, you’d be hard-pressed reading state Supreme Court decisions to guess the partisan or ideological inclinations of the justices. So I was a little disappointed when Justice Toal, asked about complaints that she’s too “political,” dismissed them by noting how well she has gotten along with the Legislature and governors, even as their politics have changed.

The political temptation Supreme Court justices face has nothing to do with party or ideology. It is the temptation to kowtow to the Legislature, whatever the Legislature’s partisan leanings or political philosophy. It’s to look the other way when the Legislature tramples on our state constitution. It’s to pretend that the laws say what the Legislature meant them to say rather than what they actually say.

That temptation must be greatest for the chief justice, whose dual role as chief executive officer of the entire judicial branch of government brings with it the heavy burden of convincing the Legislature to fund the courts adequately, and keeping lawmakers from exacting retribution, financial or otherwise, when court decisions go a way they don’t like…

It is for this reason that Cindi laments that “Justice Toal, asked about complaints that she’s too ‘political,’ dismissed them by noting how well she has gotten along with the Legislature and governors, even as their politics have changed.”

And of course, in SC, things get very personal, as Cindi suggests in suggesting an apparent reason why Associate Justice Pleicones is making this extraordinary challenge to his old friend:

… one of the themes of criticism that Justice Toal received in anonymous surveys from lawyers stemmed from what Justice Pleicones has called her broken promise to retire when her term ends next year, which would give him an extra year and a half as chief justice….

In the end, the main concern expressed is that from here on, we won’t know what these candidates are saying to individual electors: “For the mind reels at where even the most honest and well-intentioned justices might be tempted to go when they meet behind closed doors with legislators who have votes to provide them — and requests to make of them.”

Cindi doesn’t mean to besmirch either candidate. She notes in particular how Jean Toal’s tenure has been characterized by a “steady move toward judicial independence, toward calling out the Legislature when it needs to be called out.”

But moments such as this create enormous potential for undermining that kind of essential independence. And that is indeed disturbing.

8 thoughts on “Cindi’s thoughtful piece on SC chief justice contest

  1. Juan Caruso

    “I suppose it’s understandable that people would be confused about the role that partisan politics plays on the S.C. Supreme Court — none — ..” ~ Cindi Scoppe

    “None” is her opinion, and like a died in-the-wool liberal journalists she bothers not one wit to even support her assumption.

    The major flaw with any assumption is whether or not it will apply to the future, even if it were a fair commentary on the past. Global initiatives alone (UN, corporate, and legislative) at their doorstep make selection of replacements a critical issue.

  2. Brad Warthen Post author

    You evidently have never, ever read anything that Cindi Scoppe has written, if you think she is any kind of a liberal.

    And how, pray tell, is someone supposed to provide evidence, out of all that the court has done since 1988 (which is not only how long Toal has been on the court, but also how long Cindi has observed it), that something does not exist?

    Allow me to humbly assert that it would be up to people who believe that partisan influence on the court DOES exist to provide evidence. It’s a bit unfair to expect someone to prove a negative.

    1. Juan Caruso

      Brad, in fact I have read every Cindi Scoppe artical you have linked on this blog for the past two years — and commented on almost all of them. You and I may share our sense of humor, but not denotations nor connotations of moderate, liberal (Progressive), or conservative.

      More to the point, however, I never said as you suggested, that Cindy Scoppe “prove” anything. I stated that “she bothers not one wit to even support her assumption”.

      The “Anonymous Cola Lawyer”, for instance, provides a case to support his point. Some readers appreciate verifiable facts to help separate opinionated feelings (everyone has them) from reality.

      Again, future decisions of the SC Supreme Court may dwarf much of what Cindi Scoppi has observed in the past 8(?) years, even if her opinion is absolutely correct.

  3. Anonymous Cola Lawyer

    Chief Justice Toal is a great administrator. She’s moved the SC Judiciary in a positive direction with the ultimate goal of electronic filing. However, some of her opinions over the years have been very much “results oriented”. What she’s done with the unauthorized practice of law (Wachovia vs. Coffey) is one example.

    Pleicones would probably make a better CJ.

    As for the process, having the legislature elect judges/justices is far better than having judges campaign in a regular election from the people. I’ve seen that in other states – no thanks.

    1. Brad Warthen Post author

      Oh, absolutely — that is indeed the worst of all possible worlds. Popular election of judges is an abomination.

      And this system was improved considerably several years back, largely thanks to the leadership of Glenn McConnell.

      But I always had the feeling that he led reform of this system in order to avoid going to what I think is the best system — or at least, the least bad.

      That’s the federal system. Let the executive nominate, and the Senate advise and consent. And appoint them for life.

      Not because it’s such a pretty sight in Washington (although I’ll defend the system by saying that the ugliness in Washington is due to two causes that are not the fault of the system — the worsening partisan divide, and Roe v. Wade). But it’s the best way to ensure, as much as a process can, that the Judiciary is a co-equal and independent branch. Yes, judges are dependent on both branches (but neither more than the other) to get in, but once in, they are dependent on no one.

    2. Lynn T

      I share the concern about “results oriented” decisions. In the case of the Lee County landfill, the reason given to deny that odors are evidence of trespass is that odors have no physical substance. Odors are, of course, one way that we perceive airborne chemical compounds, which any chemist will tell you are physical and real. The Court surely does not suppose that odors are messages from the spirit world. This gives the appearance of an exceedingly weak justification put together in support of a preordained conclusion. Perhaps there is some sound reason that airborne chemical compounds should not be legally recognized as trespass, but if so this isn’t it.

  4. Kathryn Fenner

    One might suggest that it takes a consummate politician to get along as well as Queen Jean does with all the legislators and politicians.

  5. tired old man

    Rather ironic, isn’t it, that while the Costa/Queen Jean drama was being played on the first floor of the Senate office building, another legislative committee meeting on the third floor was proposing a $500,000 solution to a problem created by the SC Supreme Court.

    Excellent reporting, as usual, by Seanna Adcox and apologies to AP for quoting in full.

    SC advocates for elderly push for advocacy program
    Published: Yesterday
    COLUMBIA, S.C. (AP) – Advocates for South Carolina’s elderly urged legislators Wednesday to create a statewide program of volunteers who provide a voice for abused, neglected and exploited adults in court.

    After hearing from supporters, a legislative committee voted unanimously to recommend a bill putting the state Office on Aging in charge of coordinating the volunteer corps for vulnerable adults. The panel of House and Senate members tasked with studying aging issues will encourage their colleagues to approve the proposal when the Legislature returns in January.

    The bill calls for the state agency to take over and expand a pilot program developed by the University of South Carolina, which is set to end in June.
    Volunteer guardian ad litems appear in family court to represent the best interests of a vulnerable adult who’s taken into state custody. Proponents note their recommendations, which follow an analysis that includes home visits and interviews with relatives and law enforcement, don’t always coincide with the adults’ wishes. Cases range from elderly residents who are financially exploited by their supposed caregivers, sometimes their own children, to residents who live alone but simply can’t care for themselves.

    Supporters say South Carolina’s aging population means the need for such representation is increasing.

    The state’s 60-and-over population grew by 40 percent between 2000 and 2010, representing an additional 261,000 seniors. In 2010, seniors made up 20 percent of the state’s population, according to the U.S. Census.

    “We’re getting older every day. The population is exploding exponentially,” said attorney Eddie Weinberg. “There’s more opportunity for older persons and people with disabilities to be in compromising situations. We have an opportunity to act now.”

    The University of South Carolina’s Office for the Study of Aging launched its pilot at the state’s request in August 2011, after the state Supreme Court ordered courts to stop requiring attorneys to voluntarily work as guardian ad litems in family court. By May 2013, the pilot program, covering 20 counties, assisted 168 adults through the court process.

    Forty-five percent of the cases were considered self-neglect – adults “desperately trying to remain at home” but living in deplorable conditions, said Maria Patton, the pilot’s director. Thirty-nine percent of the adults were neglected by others, 9 percent were exploited, and 2 percent were physically abused, according to the project’s report.

    “A lot of times, the person exploiting the adult is living in the home, but instead of maintaining the home or paying the bills, they’re using the individual’s funds for their own means, in some cases drugs or alcohol,” Patton said.

    Social work intern Megan Monts, 26, started volunteering with Patton in August and is already a guardian ad litem for eight vulnerable adult cases in Richland County. It’s emotionally tough but rewarding work, she said. Without an impartial evaluation, “things would be done to them without thoroughly looking at what’s going on,” she said.

    The university was tasked with developing and evaluating a pilot that was supposed to end in August. The college has agreed to continue the work through June. Supporters of the bill, including the state’s AARP chapter and Silver Haired Legislature, say it makes sense for the Office on Aging to be the program’s permanent home.

    The agency, currently overseen by the lieutenant governor’s office, would recruit, train and supervise a pool of volunteers from which the courts would appoint as cases arise. The agency estimates it will need $492,200 in the 2014-15 budget to run the program. The money includes salaries for a Columbia-based director and assistant, as well as four regional coordinators.

    © 2013 The Associated Press. All Rights Reserved.


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