Brad Hewett

Donald Trump was elected and will take office as the 45th President in a few weeks. You may need to re-read that sentence and make sure you aren’t dreaming, or having a nightmare, depending on your politics of course. I’ll avoid jumping in the mud and state obviously enough that we all have our musings on Trump’s personality, celebrity, campaign, tweets, wife, hair, enterprises, and upcoming administration. While each facet of the Donald is worthy of its own discussion (Trump was ranked 8th on Google’s top 10 trending list of 2016, notably behind Prince and Pokemon Go), this entry is geared toward Trump’s replacement of Supreme Court Justice Antonin Scalia, who passed away on February 13, 2016.

Although the Trump administration has promised measures that will have extensive economic and international consequences, such as the repeal of the Affordable Care Act and steep tariffs on imported goods, his Supreme Court nomination could be the most important decision of his administration.

Why is Trump’s Supreme Court nomination so important? First, the average length of service for non-incumbent Supreme Court justices is 16.7 years, meaning it is likely that whomever Trump appoints will be on the bench long after he vacates office. While Manhattan gastroenterologist Dr. Harold Bornstein trumpeted that Donald Trump “will be the healthiest individual ever elected to the presidency” and that Trump’s “strength and physical stamina are extraordinary”, Trump’s nominee (or even nominees) may still be on the bench even after he has gone on to the Trump Tower in the sky.

Second, the Supreme Court rules on a wide array of issues that affect us all, i.e. abortion, marriage, healthcare, religious freedom, etc. For many, there is a misunderstanding, or even indifference, of how important Trump’s decision on the nomination really may be, and the impact it could have on the United States for years to come.

If you are curious as to how the nomination process¹ works, or just looking to hone your trivia skills, then read on my friends. Under Article II of the Constitution, the President will use his sole power to nominate a candidate who is well-qualified, and likely serves his political interests. The President will refer the nominee to the Senate Judiciary Committee, made up of twenty Senators, which will check the nominee’s credentials and background.

The Senate Judiciary Committee holds the first hearing for the nominee and questions his or her qualifications. Witnesses that support and oppose the nominee present testimony to the Senate Judiciary Committee and the nominee is provided with the opportunity to respond. Senators that may oppose a nominee can attempt to delay the nomination by requesting additional information or additional time prior to the hearing.

Next, the Senate Judiciary Committee votes on whether to report the nominee to the full Senate. The Committee can report the nomination with a favorable recommendation, an unfavorable recommendation, or no recommendation at all. Senators that may oppose the nominee can delay the nomination by using procedural tactics to prevent a committee vote.

The full Senate will then debate the nomination until a Senator asks for unanimous consent to conclude the debate and proceed to a vote. Any Senator can refuse to grant unanimous consent, also known as a filibuster. If a Senator objects to unanimous consent, then a cloture motion must be filed in order to end the filibuster and move to vote. Cloture motions for Supreme Court nominations require 60 votes to pass. If 60 Senators support cloture, the full Senate will vote on the nominee with a majority required for confirmation. If few than 60 Senators support the cloture, the debate continues, a vote cannot occur, and the nomination fails.

If 60 Senators vote for cloture, a simple 51 vote majority is required for confirmation. If less than 51 Senators vote for confirmation, then the nomination fails. If the 51 Senators or more vote in favor of confirmation, then the nomination is confirmed. If the nomination fails, the President must start the process again by recommending a nominee.

Now, if you are really a Supreme Court junkie and are interested in cases scheduled for the 2016-2017 United States Supreme Court docket, below is a description of a couple intriguing cases:

Gloucester County School Board v. G.G.²

Gavin Grimm is transgender boy in high school in Gloucester County, Virginia. Gavin’s biological sex is female, but his gender identity is male. As a freshman, he was diagnosed with gender dysphoria. Since the end of his freshman year, he has undergone hormone therapy and legally changed his name to “Gavin.” Gavin lives all aspects of his life as a teenage boy. In 2014, as an incoming sophomore, Gavin and his mother informed school officials that he was a transgender boy. At Gavin’s request, the school allowed him to use the boys’ restroom. This went without incident for about two months. However, the community became involved and Gloucester County School Board adopted a bathroom policy that restricts students to use the bathroom of their biological sex.

Gavin sued the school board on June 11, 2015. He sought an injunction allowing him to use the boys’ restroom and brought claims that he was discriminated against in violation of Title IX and the Equal Protection Clause of the Constitution. The district court dismissed Gavin’s Title IX claim and denied his request for a preliminary injunction, but withheld ruling on the motion to dismiss Gavin’s equal protection claim. Gavin appealed and The Fourth Circuit reversed the district court’s dismissal of Gavin’s Title IX claim based on the Department of Education’s interpretation of its own ambiguous regulation. The Fourth Circuit reasoned that the agency’s interpretation is entitled to Auer deference and was to be accorded controlling weight in the case. The Fourth Circuit also vacated the district court’s denial of Gavin’s motion for preliminary injunction and remanded the case to the district court.

In August 2016, the Supreme Court of the United States issued an order putting the Fourth Circuit’s mandate on hold until it could make a decision on the petition for writ of certiorari. On October 28, 2016, the Supreme Court decided to grant the petition. The questions presented are (1) whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 CFR § 106.33, which provides public schools receiving federal funds providing sex-separated facilities must generally treat transgender students consistent with their gender identity, should be given effect. Oral arguments will occur in the spring of 2017, with a likely decision in June 2017.

Trinity Lutheran Church v. Pauley³

Trinity Lutheran Church of Columbia, Inc. (Trinity) has a licensed preschool and daycare. The preschool and daycare incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for organizations to purchase recycled tires to resurface playgrounds. Trinity applied for the grant but was denied because the Missouri Constitution stated the state government cannot fund churches. Trinity sued Missouri DNR Director, Sara Pauley, in her official capacity and argued that DNR’s denial of its application violated the Equal Protection Clause of the Fourteenth Amendment and its First Amendment protections of freedom of religion and speech.

The district court granted Pauley’s motion to dismiss for failure to state a claim, and Trinity moved for reconsideration and to amend its complaint to include allegations that such grants had previously been given to religious organizations. The district court denied the motions, and the Eight Circuit Court of Appeals affirmed the dismissal and denial of motions. The Supreme Court granted Trinity’s petition for writ of certiorari on January 15, 2016. The question presented by Trinity is whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

Stay tuned for Part II of this riveting piece for information on Trump’s potential nominees and other cases that may be on the 2016-2017 SCOTUS docket. Special thanks to Kayla Culver for her research and contributions to this entry. Kayla is a law clerk at the Mike Kelly Law Group and second year law student at the University of South Carolina School of Law.
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¹Tem Meko, et al., Everything you need to know about appointing a Supreme Court justice, The Washington Post (March 7, 2016), https://www.washingtonpost.com/graphics/politics/scotus-nominees/; see also How the Confirmation Process Works, American Constitutional Society, http://judicialnomin ations.org/how-the-confirmation-process-works (last visited January 6, 2017); and Supreme Court Justice Nomination Process, American Bar Association, http://www.americanbar.org/publications/preview_home/supremecourtnomination.html (last visited January 6, 2017).

²G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir.), cert. granted in part, 137 S. Ct. 369 (2016); see also 16-273 Glouchester County School Board v. G.G. Questions Presented, Supreme Court of the United States, (December 26, 2016), https://www.supremecourt.gov/qp/16-00273qp.pdf; and Gloucester County School Board v. G.G, SCOTUSblog, http://www.scotusblog.com/case-files/cases/gloucester-county-school-board-v-g-g/ (last visited January 6, 2017).

³Trinity Lutheran Church of Columbia, Inc. v. Pauley, Oyez, https://www.oyez.org/cases/2016/15-577 (last visited Jan 6, 2017); see also Trinity Lutheran Church of Columbia, Inc. v. Pauley, SCOTUSblog, http://www.scotusblog.com/case-files/cases/trinity-lutheran-church-of-columbia-inc-v-pauley/ (last visited January 6, 2017).

Jamie Smith

Upon learning that I am a litigation attorney, many of my peers react in a similar manner—some variation on the theme of “…but you’re too nice to be a lawyer.” During my first months of practice, I chalked this reaction up to the various misconceptions and damning stereotypes cast on the legal profession and its members. After all, South Carolina attorneys are bound to the Lawyer’s Oath, under which each of this State’s lawyer’s pledged, to opposing parties and their counsel, “fairness, integrity and civility . . . not only in court, but also in all written and oral communications.” And so, standing firmly by the oath I’d so freshly and solemnly sworn to, I brushed off the comments of my peers and advised them with conviction that I am not too nice to be a lawyer; in fact, being nice is a necessary part of the job.

Today, after just three years of practice, experience has revealed that my vision of what that Civility Oath means to our profession is nothing short of idealistic. While most attorneys I have worked with thus far have been cordial throughout the litigation process, I have encountered my share of unpleasant, and even vicious, interactions with opposing counsel that blatantly violate the Lawyer’s Oath. There are, unfortunately, members of our bar who do not fully grasp the meaning or importance of the Oath so far as civility is concerned.

And So I Find Myself Revisiting the Question: What Is Civility?

Though the language offered by the South Carolina Supreme Court is somewhat vague, recent decisions provide ample guidance to delineate what behavior is expected from attorneys in their communications with opposing counsel, opposing parties, and the court. The South Carolina Supreme Court advises that “[a]ttorneys’ obedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech.”¹ The Civility Oath prohibits attorneys from “attacking” one another, requires that we “behave in a civilized and professional manner” while advocating for our clients,² and mandates that we “temper [our] criticisms in accordance with the professional standards of conduct.”³ In other words, the Lawyer’s Oath serves to ensure that our State’s attorneys abide by the golden rule—treat others as you wish to be treated. And so, while the civility requirement does not necessarily require attorneys to be nice, we are obligated to treat one another with respect and professionalism.

Why Is Civility Necessary in an Adversarial Profession?

A pervasive argument proffered by critics and violators of the civility requirement is that an attorney’s duty to zealously advocate for his clients may require the use of tactics that could amount to incivility; the two duties cannot always be carried out in harmony.⁴ However, the lawyer’s duty to zealously advocate and his duty to behave civilly can and must be simultaneously accomplished. Our Supreme Court has deemed the requirement that attorneys act with civility the “corresponding obligation” to zealous representation of clients,⁵ and the South Carolina Rules of Professional Conduct provide that a lawyer’s obligation to zealously advocate must be discharged “while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”⁶

That the lawyer’s obligation to pursue a client’s interest effectively and with zeal does not extend beyond the civility requirement sheds light on the incredible importance our courts place on its prescribed standard of attorney conduct. Our Supreme Court reasons that the Civility Oath is necessary to protect the integrity of lawyer-client relationships, to prevent attorneys from engaging in conduct that compromises the integrity of the judicial process, and to promote objective representation.⁷

Perhaps most importantly, though, the civility requirement protects the attorneys themselves. The legal profession, particularly litigation, is by its very nature adversarial. The constant opposition attorneys face creates stressors unique to this field, resulting in alarming consequences. A recent study funded by the American Bar Association and the Hazelden Betty Ford Foundation shows that lawyers are far more at risk for psychological ailments than non-lawyers. One in five lawyers suffers from a substance abuse problem. Twenty-eight percent of attorneys nationwide suffer from depression, and 19% report symptoms of anxiety.⁸ Bar members suffer from depression, alcohol and substance abuse, and—in South Carolina—suicide, more so than any other profession in the United States. A recent ABA published survey revealed that practicing as an associate in a law firm is the most miserable job in America.⁹

The civility requirement is a necessary means to relieve some of the hostility that inevitably exists in the legal profession and to ensure that attorneys treat opposing counsel and parties with respect and professionalism. Removing the disparaging remarks, offensive tactics, and personal attacks from the already stressful conditions inherent to this profession is a step toward bettering these frightening statistics and developing more cordial relationships with the attorneys across the table.

How Can the Civility Oath Better the Legal Profession?

Despite South Carolina’s 2004 introduction of the Civility Oath, the problem of incivility persists, and the 2015–2016 Annual Report of Lawyer Discipline in South Carolina reports that complaints of incivility accounted for 1.62% of reported misconduct.¹⁰ Though a seemingly innocuous percentage, personal experience and conversations with other legal practitioners suggest that many instances of incivility go unreported. The concept of turning in a fellow attorney to the Office of Disciplinary Counsel is an uncomfortable one; filing a grievance may give rise to additional conflict, retaliation, or bad blood with an attorney with whom you may work future cases. Moreover, most lawyers already carry a tremendous workload—reporting misconduct and assisting in a subsequent investigation simply lengthens an already overwhelming to-do list. Often, the easiest way to handle incivility may be to ignore it, to shake it off, or to behave in like kind—none of which address the root of the problem.

The Civility Oath provides attorneys with a key to bettering the legal profession, but we must shed the reluctance to use it. Whatever the excuse may be to let incivility slide, failure to take action when attorneys demonstrate egregious or pervasive acts of incivility renders the Civility Oath ineffective. What purpose does the requirement serve if we do not enforce it? As attorneys, we fight to protect the rights of our clients every day; we need expand upon that advocacy to promote the well-being of ourselves and colleagues. If communications with opposing counsel begin to cross the civility threshold, we should remind our counterpart of the civility oath rather than acquiescing or reciprocating with hostility. If a firm reminder that unacceptable behavior carries disciplinary consequences fails to resolve an instance of misconduct, then follow through on enforcing those consequences. To practice law is a privilege, not a right, and in order to maintain that privilege attorneys must behave with dignity and professionalism. Failure to hold our fellow lawyers accountable to that standard constitutes a disservice to legal profession and members of this Bar.

That being said, we as lawyers must also hold ourselves accountable for our own behavior. We must endeavor to uphold the Civility Oath and serve as examples to our colleagues. One can easily lose his temper or lash out when litigation becomes heated. However, when we find our blood beginning to boil, that is the not the time to react; it is the time to step away and regain composure and objectivity. It is imperative that we remain conscientious of the golden rule, and before sending a stinging email or making an angry phone call, take the time to consider whether, if the tables were turned, one could objectively and honestly label the intended communication as professional and civilized. We must remind ourselves that, behind the buffer of letters and emails, the opposition is not faceless—he is a person. Let us stay mindful of the fact that a person has vulnerable days—that a person could be battling a chronic illness, mourning the loss of a loved one, or experiencing marital difficulties. A person might fall within the 28% of attorneys struggling with depression or be at risk of surrendering to substance abuse. Incivility toward an opposing attorney may have more harmful consequences than one might think. Before launching a personal attack or undignified retort, we must consider the troubling statistics that plague the legal profession and acknowledge the importance of upholding the Civility Oath—the necessity of respect and cordiality—in combating the disquieting reality that lawyers, as people, face.

At risk of sounding cliché, attorneys should strive to be the change. In doing so, we must continually and honestly ask ourselves: do my actions fuel the problem or promote the solution? And, above all else, we must recognize that there is only one acceptable answer to that question.
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¹In re Anonymous Member of S.C. Bar, 392 S.C. 328, 709 S.E.2d 633 (2011).
²Id.
³In re White, 391 S.C. 581, 707 S.E.2d 411, reinstatement granted, 393 S.C. 227, 712 S.E.2d 436 (2011).
⁴Id; David A. Grenardo, Enforcing Civility: Holding Attorneys to a Higher Standard of Conduct, http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/
39th_conf_session14_enforcing_civility_holding_attorneys_to_a_higher_standard_of_conduct.authcheckdam.pdf , (last visited Nov. 14, 2016).
⁵In re White at 589, 707 S.E.2d at 415.
⁶S.C. RULES OF PROF’L CONDUCT r. 407.
⁷In re Anonymous Member of the S.C. Bar, 392 S.C. at 337, 709 S.E.2d at 638.
⁸Alexia Elejalde-Ruiz, High rates of alcohol abuse, depression among U.S. attorneys, study says, THE CHI. TRIB. (Feb. 3, 2016, 4:51 PM), http://www.chicagotribune.com/business/ct-lawyers-problem-drinkers-0204-biz-20160203-story.html.
⁹Mike Etheridge, Lawyers in Search of Soul: A Journey Towards Wholeness, THE A.B.A., http://www.americanbar.org/content/dam/aba/administrative/young_lawyers/ meetings/2015/midyear_meeting/lawyers_journey_toward_wholeness.authcheckdam.pdf (last visited Nov. 13, 2016)
¹⁰Annual Report of Lawyer Discipline in South Carolina 2015-2016, http://www.judicial.state.sc.us/disccounsel/CLC2016.pdf (last visited November 14, 2016),