Remarks to the House of Delegates Meeting, South Carolina Bar

Good afternoon.  As the veterans of these House of Delegates meetings know, it is customary for the President of the Bar, as he or she leaves office, to report on what has been accomplished during that President's Bar year.  You may recall that I began this to some extent at the Convention.  At that time, I reported on the very good work done by our Lawyer Image Task Force, our Member Involvement Task Force, and the Bar's Solo and Small Firm Section, all of which were initiatives of the 2011-2012 Bar year. 

I had planned to continue that report during this meeting, focusing on two other initiatives from this year.  One of those initiatives is technology.  The Bar has worked to improve the way it uses technology to advance the functions of the Bar.  We have done this in many ways, including working with our Supreme Court on the new AIS data base which will lead to important lawyer benefits such as e-filing and a one-stop site for all court rosters in the state. 

The other important item that I had planned to talk about was the Bar's work on Rule 608.  As you know, in a case called ex parte Brown, the Bar filed an amicus brief with the Supreme Court challenging the constitutionality of unfunded appointments.  In June of 2011, the Court agreed with the Bar's position, finding that such unfunded appointments do indeed constitute unconstitutional takings.  Since that time, the Bar has worked with the General Assembly to establish recurring funding for court appointments. Thanks in large measure to the Brown decision, it appears that unfunded court appointments, which have long been a thorn in the side of the Bar, may be a thing of the past. 

So we could spend a lot of time on these Bar initiatives.  But you have a report at your seat that describes these and other things in detail.  Instead, I wanted to talk about a different issue with you this afternoon.  It is one that I have been thinking about and worrying about over the last weeks.

As you know, in March the United States Supreme Court heard arguments about the constitutionality of the Affordable Health Care Act, also known as ObamaCare.  There is perhaps no more controversial and divisive issue in American politics than health care.  I suspect that our state and our Bar, much like the rest of the nation, are divided on the merits of this issue.  As a mandatory Bar, it is not appropriate for the Bar to comment on the merits of political issues such as health care.  However, the upcoming decision from the Supreme Court in my view gives rise to an issue that is important to our profession.  That issue is the "independence of the judiciary."

In our state, we have witnessed first hand challenges to the independence of our judiciary.  Outside interest groups have attempted to influence judicial elections.  When that has happened, the South Carolina Bar has stood up.  We have said that is not right.  Our judiciary is independent.  It is not a pawn for any political party or for any special interest group. 

I believe we were right to do that.  I also believe this issue will present itself on a national scale, perhaps as early as next month, when the Court renders its health care decision.  At this point, no one knows what that decision will be.  However, it is almost certain that a large segment of the population will like the decision and a large segment will not.  When that happens, how will citizens respond?

I suspect we will do what we often do in our society: we will disagree; we will debate the outcome; we will even argue about it.  That is okay.  We live in a democracy and such debates and arguments are what democracy is all about. 

But I hope that when we engage in these discussions, we do so in a way that does not undermine the independence of the judiciary.  Twelve years ago, our country faced a similar situation.  We were on the heels of, rather than the beginning of, a bitter Presidential election.  That election was between Vice President Al Gore and Texas Governor George Bush. 

As we all remember, the outcome of that election came down to the State of Florida.  And the voting in Florida was so close that it ended up being decided by courts.  When the United States Supreme Court ultimately decided that the recounts of the Florida votes should stop and that the Florida Secretary of State should certify Florida's delegates as supporting then-Governor Bush, George Bush became our 43^rd President.  This decision was met with great joy by Republicans, and great dismay by Democrats.  But Vice President Gore, in perhaps his finest hour, resisted what must have been an unbelievable temptation to criticize the Court.  Instead, he accepted the decision as legitimate, leading to the peaceful transition of power from one party to another.  When you think about it, that was an amazing testament to the rule of law.

But to be honest, I really did not think much about it at the time.  I kind of took it for granted.  But the international events of the last few years tell us how lucky we are.  Look at Tunisia, or Egypt, or Libya, or now Syria to see what happens when there is not such respect for the law. 

The rule of law in our country is special.  It is unique.  But it cannot and should not be taken for granted.  It depends on there being support for our judiciary.  And such support depends on the independence of the courts.

As I said, I have no idea what the outcome of the decision on the Affordable Health Care Act case will be.  In fact, I laugh when I see and hear political pundits on TV predicting the outcome.  I should take them with me the next time I go to court because for over twenty years, I have been continuously surprised by how judges rule and what juries decide. 

But while I don't know what the outcome of the decision will be, I do know that lawyers are uniquely positioned to set an example to the proper response to the decision.  When that decision comes, we, like the rest of society, have every right to debate the merits of the decision. 

But before doing so, let's take a deep breath.  Let's refrain from personal attacks on the judges.  Let's refrain from attacking the legitimacy of the Court.  Let's not criticize the decision as being based on politics rather than the law.  Let's not call the Justices Reagan appointees, or Clinton appointees, or Bush appointees, or Obama appointees.  And even if we disagree with the decision, let's respect it as being made by judges doing their best to interpret the law in light of the difficult issue that was placed in their laps.  Judges across the nation, and indeed right here in South Carolina, have to make those tough decisions every day.  So let's respect the independence of the judiciary.  And by doing this, let's uphold the rule of law. 

In closing, I cannot tell you how much I have appreciated the opportunity to serve you as your Bar President.  I want to thank a few groups of people.  First, the South Carolina Bar staff.  Will you please rise?  As you all know, we have an incredible staff led by our Executive Director Bob Wells.  Thank you for all of your hard work. 

Second, the South Carolina Bar Board of Governors.  Will members of the Board of Governors please stand?  We have a great Board right now and in between House of Delegates meetings, this Board has strived to carry out the business of the Bar in a thoughtful and helpful way.  I have delegated a lot of responsibility to various members of this group, and they have done a terrific job.

For anything this Bar year that has gone badly, there is no one to blame but me.  But the good news is that the future is in better hands.  Angus Macaulay is poised to have a great year as your next president.  And in his footsteps will follow Alice Paylor, Cal Watson, and Anne Ellefson.  Whatever I have managed to screw up this year, there is plenty of time to fix.

Third, I want to thank Chief Justice Toal and our Supreme Court.  As mentioned earlier, the area in which we have worked mostly with the Court this year is the AIS database.  But we have worked closely and well on numerous other issues.  We have a great leader of our judicial system in Chief Justice Toal and having her support has helped us greatly this year. 

Last, I want to thank this House.  You are dedicated leaders of our profession.  In fact, your enthusiasm is clear from the unprecedented number of contested House elections this past cycle.  I am pleased to see that strong interest from the Bar in serving in the body that sets the policy for the Bar. 

Many of you have encouraged me throughout the year.  That encouragement means a lot.  I thank you for all you do for the Bar, and, as I become Past President, I look forward to rejoining you as a member of the House of Delegates. 

Thank you very much.