SC legislature delays judicial elections, sparking criticisms of selection process

For the first time in 35 years, South Carolina is poised to have only men on its state Supreme...
For the first time in 35 years, South Carolina is poised to have only men on its state Supreme Court bench.(Mary Green)
Published: Jan. 27, 2023 at 7:36 PM EST
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COLUMBIA, S.C. (WCSC) - For the first time in 35 years, South Carolina is poised to have only men on its state Supreme Court bench.

The court’s lone woman, Justice Kaye Hearn, has now reached the state-mandated retirement age of 72.

But the vote to confirm her replacement has now been delayed amid rising dissatisfaction at the State House with how the state picks its judges.

South Carolina is one of two states where the legislature elects judges.

This year’s judicial elections had been scheduled for Feb. 1, and the legislature needed to pass a resolution to officially set that date.

Most years, that resolution is simply a formality, but this week, both the Senate and House of Representatives made the unusual move of pushing that date back a week to Feb. 8.

“The election would be next Wednesday; we have to adopt the resolution, the House has to adopt the resolution, and just from a timing perspective, so this just ensures that everyone has time to adopt it,” Senate Majority Leader Shane Massey, R – Edgefield, said Wednesday when Sen. Margie Bright Matthews, D – Colleton, asked why he proposed delaying the elections.

Massey introduced a bill that would allow the General Assembly to consider all qualified candidates for judicial elections.

Right now, they can only pick from among three finalists, who are selected by the Judicial Merit Selection Commission. That 10-member panel, made up of legislators and attorneys, screens all qualified candidates and whittles the field down to the three finalists up for consideration by the entire legislature.

Sen. Richard Cash, R – Anderson, proposed an amendment to the resolution to postpone only the date of the Supreme Court election, allowing the rest to proceed on Feb. 1 until after Massey’s bill could work through the legislative process. That amendment was voted down in favor of delaying all elections by a week.

“I understand that delaying a Supreme Court election would be an unusual step,” Cash said.

But we are dealing with what many people have said to me in private conversations, what many of us believe to be a constitutional crisis, judicial activism, legislating from the bench.”

The delay comes as the highest-profile vacancy the legislature will fill this year, that for the seat on the five-member Supreme Court, is drawing higher-than-normal scrutiny.

Hearn, whom lawmakers will be replacing, is the only female justice on the bench and the author of the majority opinion in the recent decision to strike down South Carolina’s six-week ban on abortion.

That ruling drew heavy criticism from Republicans at the State House, many of whom called for more emphasis to be placed on determining candidates’ judicial philosophies during the selection process.

Before the abortion decision, the Judicial Merit Selection Commission had already narrowed down the field to replace Hearn to three candidates: Judge Gary Hill, Judge Aphrodite Konduros and Judge Stephanie McDonald.

But Konduros and McDonald dropped out of the race soon after they could begin securing votes from lawmakers, leaving Hill as the sole candidate.

“South Carolina is about to become the only state in the entire nation to not have a female Supreme Court judge, and that is embarrassing,” Sen. Sandy Senn, R – Charleston, said on the Senate floor.

Senators also noted state-mandated retirement is approaching next year for Chief Justice Donald Beatty, the only Black justice on the Supreme Court bench.

“I hope we can find competent people that will appeal to you in whatever way that will reflect South Carolina because I too do not believe that we should have an all-male court, and I also am very concerned about African-American men on the bench here in South Carolina,” Sen. Gerald Malloy, D – Darlington, told his colleagues.

In his State of the State address earlier this week, Gov. Henry McMaster called for South Carolina to overhaul its judicial selection.

McMaster is proposing the governor appoint judges, with the advice and consent of the Senate, instead of the legislature electing them.

“It appears that the public’s confidence in this arrangement is waning,” McMaster said. “Too often, the people’s business is unattended. Justice delayed is justice denied.”