Kershaw Kerfluffle and The Rule of Law

I feel compelled to join Fifth Circuit Solicitor Dan Johnson’s rebuke of Kershaw County Sheriff Jim Matthews’ recent attacks on Circuit Judge Alison Lee. Judge Lee gave a probationary sentence to a defendant that Matthews’ really wanted to go to prison. She did so after hearing presentations from both sides of the case and apparently after hearing mitigation that was powerful enough to bring her to tears.  When law enforcement or other executive branch officials criticize and denigrate a judge for their specific rulings in cases, the judge cannot ethically respond, which means that hard-nosed criticism of the judiciary will go unanswered unless members of the bar speak up about the judicial process and why the criticism is unjustified.

Why it Matters When Government Officials Attack Judges for Specific Rulings

As Johnson states in his op-ed, “In the United States, the legislative branch of government makes the law, the executive branch enforces the law, and the judicial branch interprets the law.” The separation of powers written into the federal and state constitutions is what has preserved our nation as a democracy for over 200 years. Without it, we would have slipped into an autocracy long ago. It’s unfortunately natural that many people who come into power will seek more and more power sometimes at any cost. When a person in power thinks that they have the answers and other people stand in their way, the tendency is often to bully their way through and get what they want through force.

The drafters of our nation’s and our state’s Constitution understood this and carefully set up a framework that they hoped would withstand autocratic power grabs. The separation of powers gives each branch of government a number of “checks and balances” that should prevent the other branches, or those who have clawed their way to the top of those branches, from seizing power and ending our democracy. For example, the judiciary interprets the law. The executive, including sheriffs, enforces the law, but, once a defendant finds themselves in the courtroom, the judiciary makes the calls. Sometimes, those judicial calls will result in a “check” on the power of the sheriff, the chief of police, or even governors or presidents. Without that judicial “check,” a sheriff, solicitor, governor, or president could consolidate more and more power until the state or nation is in danger of slipping into autocracy.

But, Whats to Stop an Out-of-Control Judge?

Not the sheriff. If a judge’s rulings are incorrect, there is an appellate process and the Court of Appeals or Supreme Court will correct them. If a judge is unpopular or is not fulfilling their obligations as a judge, they will be replaced. In South Carolina, judges are elected by the legislature. The ultimate “check” on the judiciary in South Carolina is performed by the legislative branch, not the executive. The legislature will review each judge’s rulings and will listen to input from law enforcement and other officials before re-electing or replacing each individual judge when their term has expired. They will almost certainly listen to Matthews and anyone else who feels that Judge Lee is doing a bad job, just as they will hear from those who believe Judge Lee is doing a fantastic job. Sheriff Matthews doesn’t make that call. By trashing a judge when he does not agree with her rulings, he is circumventing the ordinary process and he is calling the integrity of the judiciary into question as a method of achieving his own goals.

We need tough law enforcement. That alone is not good enough. We also need tough law enforcement officials who understand and enforce the state and federal Constitutions as well as the criminal laws. We need law enforcement who will follow the rule of law as well as enforcing it against others. That includes respecting the constitutional rights of suspects and defendants and it includes knowing where the line is between a sheriff’s and a judge’s responsibilites.

One Response to “Kershaw Kerfluffle and The Rule of Law

  • “If a judge’s rulings are incorrect, there is an appellate process and the Court of Appeals or Supreme Court will correct them. If a judge is unpopular or is not fulfilling their obligations as a judge, they will be replaced.”

    Unpopular? To whom? How often is a judge unpopular to BOTH sides? The judge isn’t going to be replaced by his buddies in the legislature if they think s/he’s being ‘tough on crime’.
    Matthews certainly has a right to voice his opinion under the 1st Amendment as one of the People, not in his official capacity as Sheriff.

    “By trashing a judge when he does not agree with her rulings, he is circumventing the ordinary process and he is calling the integrity of the judiciary into question as a method of achieving his own goals.”

    If someone speaks out against a judge, but that judge can wait until his/her term is over to face the music, what motivation is there to change?

    AND, the fourth check and balance is, We The People.
    “A patriot must always be ready to defend his country against his government.” Edward Abbey.

    Legislative watchdog groups, Judicial watchdog group, Executive watchdog groups, and more; Police the Police, as well as other groups listed here (https://www.activism.net/government/watchdogs.shtml) and many others are supporting our government by shining the light on their activities, at least the ones that can be seen and exposed.

    BUT, what are We The People to do when we run up against corrupt judges, prosecutors and attorneys? Unfortunately, the People are not educated on what to do in these cases.

    For example, when a judge deprives a defendant of a Constitutional Right to subpoena his primary witness, and the Public Defender or hired Attorney will not stand up and challenge the Judge. (This is a specific example based on my personal experience concerning my primary witness that was located two miles away.)

    Or when the police break the laws that they have a duty to enforce?

    Or when lawyers cherry pick the cases based on how much money they will make on the case.

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