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Cindi Ross Scoppe | Where have all the SC legislature lawyers gone?

October 3, 2013 

— penultimate day of this year’s legislative session, Senate Judiciary Chairman Larry Martin was explaining an intricate amendment to a bill to broaden the definition of stalking when Sen. Ronnie Cromer rose to ask him a question.

The Newberry pharmacist prefaced his question by saying: “Senator, I’m not an attorney.”

What was notable was not the fact that a senator would not be a lawyer; long gone are the days when that was nearly a prerequisite for joining the Senate. What was notable was the fact that Mr. Martin, who runs the legislative committee that more than any other is looked upon to sort out complex constitutional matters and work through the thorniest questions involving civil, criminal, contract and other matters of law, could have responded by saying, “Neither am I.”

For all you hear about the undue influence of lawyer-legislators, their power actually is greatly diminished. And that is not a good thing, because, let’s face it, what lawmakers do is … write laws.

As much as people like to complain about how convoluted laws are – and oftentimes they are more convoluted than they need to be – the fact is that writing laws requires precision well beyond what is necessary for ordinary conversation, or campaign promises. Laws that don’t adhere to complicated constitutional requirements, as determined by the state and federal courts, will be declared unconstitutional; laws that use terms of art that the writers don’t understand will have unintended consequences.

Lawyers have been in the minority at the State House for years. In fact this year’s numbers – 33 percent of the Senate and 22 percent of the House – are unchanged from the last time I did a count, in 1997.

What’s different is lawyers’ position in the legislative hierarchy. Only three of the Senate’s 14 committee chairmen and two of the House’s 10 are lawyers; five of the Senate’s 15 lawyers are freshmen.

What’s dramatically different is the change that occurred in the Senate after President Pro Tempore and Judiciary Chairman Glenn McConnell resigned last year to become lieutenant governor.

Mr. Martin, a Pickens textile executive, suddenly found himself as the first non-attorney leading the Judiciary Committee since at least Reconstruction. Sen. John Courson, a Columbia insurance executive, became only the second non-attorney elected president pro tempore – John Drummond was the other – since Newberry farmer Alan Johnstone in 1921. They are joined by two other non-attorneys, Finance Chairman Hugh Leatherman and Republican Leader Harvey Peeler, as the Senate’s top leaders.

The House still has an attorney in charge of the Judiciary Committee and as speaker pro tem, but it has been led by a non-attorney, Bobby Harrell, since David Wilkins resigned as speaker in 2005 to become U.S. ambassador to Canada; Mr. Harrell is the first non-attorney speaker in at least a century.

The shift has come as a result of both political and legal changes.

That was then

Time was, it was a given that ambitious young lawyers wanted to serve in the Legislature. As the legendary Sen. Jack Lindsay told me back in 1989, in explaining why he had first run for office: “I guess everyone that runs for the Legislature, young lawyers, think they'll go serve a term or two, get themselves known, help establish their law practice.”

In fact, simply running for the Legislature was a reward in itself: It allowed lawyers to get around the Supreme Court’s ban on advertising; if they were elected, that was just a bonus – which at the least raised their profile back home, probably got them some nice retainers from special interests and just might land them a judgeship.

But the court eventually allowed lawyers to advertise. The Legislature overhauled the ethics law, curtailing lawyers’ ability to vote on some important matters and requiring them to report much more about not only their own clients but also those of their law partners, which makes the partners less supportive of a run for office. And as a coup de grace, the Legislature abolished perhaps the most attractive legislative perk for lawyers, requiring them to resign from the Legislature a year before they ran for a judgeship.

Meantime, our electorate has become increasingly Republican, and as a result the regard for lawyers has decreased. Although traditional Republicans don’t automatically distrust everyone with any sort of expertise, as more radical tea party followers do, they do have a strong preference for business people over attorneys.

No surprise then that even though our Legislature is nearly two-thirds Republican, just half the lawyers are Republican. No surprise either that it’s a Republican, Lexington Rep. Todd Atwater, who chose to have himself listed in the Legislative Manual not as a lawyer but simply as CEO of the S.C. Medical Association. Or that it’s a Republican, Horry Sen. Greg Hembree, who had himself listed as “Full-time Legislator/Retired Prosecuting Atty.” For that matter, it’s no surprise that the one legislator who chose to be listed as “Trial Lawyer,” Orangeburg Sen. Brad Hutto, is a Democrat.

And this is now

What we have gotten in place of all the lawyers is a much greater diversity of occupational experience – and a new overrepresented segment.

In addition to the 15 lawyers, the Senate has 14 members who list themselves as “businessman” or president, CEO or owner of a company, along with four insurance executives, three retirees, two pharmacists, a dentist, a real estate broker, a financial planner, a transportation official, a county government official, a pastor and a textile executive.

The House has 28 lawyers, 34 people who call themselves business owners or businessmen or -women, 16 retirees and two full-time legislators along with a half-dozen medical professionals, five educators, four ministers, three consultants, two funeral directors, a barber, a social worker, a landscape supervisor, a long-term care administrator and a scattering of other occupations.

What we have lost is what former Attorney General Travis Medlock calls “a special competence” that lawyers bring, particularly on technical and constitutional issues, because “That’s what they do.”

Mr. Medlock, who served in both the House and the Senate before becoming our state’s chief lawyer, argues that lawyers provide crucial leadership because they are “trained problem solvers working daily within tightly structured disciplines of the judiciary system, which is somewhat akin to the legislative process.”

Sen. Martin is doing a good job overseeing the Judiciary Committee because he has a great deal of respect for the complexities of writing laws and has worked hard to understand constitutional issues and to recognize when he doesn’t. He relies heavily on both his staff attorneys and the attorneys on his committee, and for all the shots he and other business executives like to take at lawyers, he considers lawyer-legislators a tremendous benefit both to himself and to the rest of the non-lawyers in the Senate.

“I don’t want to see us get to the point that we can’t have good civic-minded attorneys in the Legislature, because I think they’re needed,” he told me.

Then he paused and added, “Of course, I don’t want one defeating me.”

Contact Scoppe, The State’s associate editorial page editor, at cscoppe@thestate.com.

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