Scoppe: Tentacles of Murdaugh saga reach beyond SC law enforcement into judicial selection

The Murdaugh saga began with questions about South Carolina's criminal justice system: Why didn't police conduct a sobriety test on the obviously intoxicated Paul Murdaugh (or anyone else) after the fatal 2019 boat crash that he apparently caused? Why were criminal charges filed nearly two months after an accident whose investigation was complicated more by relationships than by facts - and then only after a lawsuit pointed clearly to Mr. Murdaugh's culpability in Mallory Beach's drowning death?

The murder of Paul and his mother, Maggie, two years later amplified questions about the solicitor's office - why had Solicitor Duffie Stone recused himself so quickly after the boating accident but not until two months after the murders? - and why was Alex Murdaugh serving as a part-time volunteer solicitor in the office his great-grandfather, grandfather and father had run for 85 years: What was in it for the solicitor's office? And what was in it for him?

As the story morphed from small-town curious to Southern gothic strange, and its tentacles stretched beyond those three deaths to allegations of drug addiction, embezzlement, insurance fraud and legal improprieties, questions emerged about the judiciary. I mean, beyond the questions we already had about the judiciary in Hampton County, once dubbed the nation's third-worst "judicial hellhole" because of the eye-popping verdicts that the Murdaugh law firm kept pulling down in lawsuits against railroads and other deep-pocketed, out-of-state defendants.

The latest question: Why, after recusing herself from the boating case because she was so close to the Murdaughs, did Circuit Judge Carmen Mullen apparently sign the never-filed order that was supposed to give (but still hasn't delivered) a too-small portion of a secret $4.3 million insurance settlement to the sons of the Murdaugh housekeeper who died in the Murdaugh home in 2018?

Mr. Smith goes to court

On Wednesday, the questions reached into South Carolina's uniquely special judicial selection system, when House Ways and Means Chairman Murrell Smith showed up in a Lexington courtroom before Judge Daniel Hall defending the owner of the convenience store that sold beer to the underage Paul Murdaugh before the boat crash:

Doesn't Mr. Smith also chair the state Judicial Merit Selection Commission, which decides who can and can't seek election - or reelection - to the bench? Isn't Judge Hall up for reelection next year? Isn't he the only circuit judge who's opposed for reelection? And can you imagine how much pressure he must feel to see things Mr. Smith's way in the wrongful death lawsuit against Mr. Smith's client?

Mr. Smith's sudden appearance in the saga also renews questions about why he chairs both of those powerful committees - and until this year also chaired the House Ethics Committee. This sort of power hoarding would seem remarkable even in the traditionally insular 46-member Senate, let alone the 124-member House.

Of course, this part of the saga has less to do with the Murdaughs than with the way well-off people yield influence in our government. Greg Parker might well have pursued the same legal strategy if the man accused in Ms. Beach's death had been named John Doe rather than Paul Murdaugh. Recall, for example, that Mr. Parker mounted a campaign earlier this year to convince the Legislature to change a law so he couldn't be held accountable in the death that resulted from an afternoon of underage drinking that his business allegedly facilitated.

For today, though, let's confine our discussion to Mr. Smith's role as chairman of the Judicial Merit Selection Commission.

The problem here isn't that Murrell Smith is representing Mr. Parker while he's chairing the commission - or at least that's not the big public policy/ethics in government problem.

The problem is that Mr. Smith is chairing the commission while he's a legislator.

Politics or merit?

The Judicial Merit Selection Commission was created in 2004, along with a change to our state constitution, after a colleague and I exposed the wretched political horse-trading of the old selection process - best illustrated by the three-way trade that put the least qualified candidate on the S.C. Supreme Court and the Court of Appeals and reelected a Circuit Court judge whom a legislative screening committee said didn't understand the basics of the law. (Then-Sen. Robert Ford said he "had to sell my soul to 10 devils" to make it all work.)

The commission was supposed to replace politics with merit - only the three candidates nominated by the commission are allowed to seek election - by mimicking the gold-standard merit-selection process while maintaining South Carolina's dubious distinction as one of only two states that still allows the legislature to hand-pick the judiciary.

The reform has weeded out barely qualified candidates who in years past likely would have been elected, but it hasn't addressed because it wasn't meant to address the more fundamental flaw in our judicial selection system: the fact that one of the three supposedly co-equal branches of government has total control over the selection of another, while the third is cut completely out of the loop.

The most obvious way to fix this would be to let the governor select the judges, from a short list of candidates nominated by a merit selection panel, with the Legislature confirming the pick; a S.C. twist would allow legislators to dominate or even take all the seats on the selection panel. The twist we ought to be able to convince the Legislature to adopt would let the Legislature keep selecting the judges, with the governor appointing the Merit Selection Commission. In which case Mr. Smith would just be another very powerful lawyer-legislator representing his client before a judge that the Legislature will either reelect or depose in a few months.