State's judicial screening process worked
Something remarkable happened in South Carolina legal and political circles on December 5. A sitting circuit judge running unopposed for reelection withdrew her candidacy before the Judicial Screening Commission.
News reports have focused on the unfavorable comments made by lawyers regarding Judge Kristi Harrington in an anonymous survey. The surveys revealed that many lawyers who had appeared before this judge thought she was unqualified by temperament to serve. Those survey results were not the only speed bump in Judge Harrington’s path.
Personal interviews of lawyers in the Charleston area by the South Carolina Bar revealed dissatisfaction consistent with the anonymous surveys. Ultimately, it appears that Judge Harrington withdrew when it became clear that she had violated state law by contacting members of the General Assembly prior to the completion of the judicial screening process.
One news report noted that the screening commission members are all male. We have many strong and talented women judges in South Carolina, and, in my view, the composition of the commission had nothing to do with the assessment of Judge Harrington’s qualifications.
I have been trying cases all over South Carolina since 1975. No judge, male or female, ever treated me as rudely and unprofessionally as Judge Harrington did when I appeared before her in Charleston earlier this year.
I was in court to represent The Post and Courier in a suit against the City of Charleston. I arrived at the courtroom well before the scheduled start of the hearing. I did not know Judge Harrington, and wanted to introduce myself to her. The court was not in session when I arrived. Judge Harrington was on the bench and a small group of recent law school graduates was in the jury box to observe court proceedings as part of the process by which they become eligible to appear in court.
In the Charleston courthouse, the spectator area is separated from the well of the court by a knee-high wall with small swinging doors for passage. When I entered the well of the court, the swinging door swung back and forth with a clunking sound. Judge Harrington said, “You must not come here very often.” I chose not to reply.
As I moved toward the bench Judge Harrington said, “You need to ask to approach the bench. Had you been next door in General Sessions (criminal) you would have been locked up.” No judge I have appeared before has ever insisted that a lawyer ask permission to approach the bench whether during trial, a hearing or a recess. Maybe they do it that way on television, but that has not been the way we do it in South Carolina.
I continued toward the judge’s bench and set my briefcase on an unoccupied desk placed perpendicular to the judge’s bench. Judge Harrington said, “Mr. Bender, you need to ask permission before you set anything on someone’s desk.” I bit my tongue.
As I was trying to introduce myself, Judge Harrington and I were speaking at the same time. Judge Harrington said, “I just told these students to never interrupt a judge.” Judge Harrington then said, “Mr. Bender, you are creating a bad example for these law students in many areas today.” I thought to myself that these law students were going to leave that courtroom with a skewed view of how judges in South Carolina conduct themselves. I picked up my briefcase and went back to the spectator area until my case was called for hearing.
You might ask why I didn’t testify against Judge Harrington at the screening hearing. I was prepared to do so, and had completed an affidavit recounting the events outlined above.
Then, I thought about the situation. Here is a sitting judge running unopposed for reelection. When I retire and ride into the sunset, I won’t worry about Judge Harrington, but the odds were that she was going to be reelected and might seek revenge against my clients and partners. It would be nice to pretend that this doesn’t happen, but it has happened in South Carolina with judges who thankfully are no longer sitting.
Had I been subpoenaed to testify, I would have done so, but unfortunately, the screening commission had no way of knowing what I would say. Should I have had more courage and spoken up? Probably.
Judges in South Carolina are elected by the General Assembly. The process always involves politics, but over the past several years steps have been taken to incorporate merit-based evaluations of judicial candidates, hence the Screening Commission. The process will never be free of politics, but in this instance it worked.
Jay Bender is a media attorney practicing in Columbia. He also serves as backup legal counsel for the South Carolina Press Association.