COLUMBIA, S.C. — South Carolina on Wednesday became the nation's only state without a woman on its Supreme Court — a development that comes amid increasing Republican scrutiny of the court that narrowly struck down the conservative state's abortion ban last month.
The Republican-led Legislature chose Judge Gary Hill to replace the high court's lone female justice, Kaye Hearn, who had reached the court’s retirement age and who wrote the leading opinion in the 3-2 ruling overturning the state's 2021 abortion ban.
Hill was the only candidate for the position remaining after two female candidates, Judges Stephanie McDonald and Aphrodite Konduros, dropped out on Jan. 17, which was the day candidates could begin seeking legislators' support. Although nominees have previously left such races when they decided they lacked the votes, the departures have not often happened so swiftly.
Hearn's departure and the abortion ruling have led to ardent discussions over gender diversity in the courts and the merits of South Carolina’s fairly unique judicial selection system. In most states, voters or the governor take the lead in choosing who sits on state courts. South Carolina and Virginia are the only two states where lawmakers exercise almost complete power over filling the bench.
Under the current process, lawmakers consider a pool of up to three candidates for the high court who have been deemed qualified by a Judicial Merit Selection Commission comprised of four members of the public and six legislators. Candidates must then get a majority of the votes cast in a joint session of the General Assembly.
Tensions reached a flashpoint during a Jan. 25 floor speech by state Sen. Sandy Senn. The Charleston Republican accused House Republicans of forcing the two women out after holding informal polls purportedly showing that neither would win. House Speaker Murrell Smith denied the allegations of premature pledging in a statement to the Post and Courier.
“The smartest candidate, I believe, would’ve been the judge who left my partnership 12 years ago," Senn said in reference to McDonald, her former law firm colleague.
“I fear that her loss is partly my fault because she got painted with a brush that I guess I set forth," added Senn, a vocal opponent of last year's efforts to further restrict abortion rights.
Senn criticized the lack of gender diversity throughout the judiciary and called it “embarrassing” that the family court is the only place where women hold a majority of seats.
Hill received support Wednesday from 140 of South Carolina’s 170 lawmakers. None of the five female state senators voted for him.
Although many legislators agreed that gender should not be the sole factor, some women shared Senn's disappointment in the lack of female candidates. Others emphasized their focus on a nominee's background or philosophy.
“I would just like to say on the behalf of the women here, that we believe in merit," Republican state Rep. April Cromer said Wednesday during a House Freedom Caucus news conference. "To base it on anything other than what their qualifications are is discrimination.”
The abortion decision continued to cast a shadow over the session. Hours before lawmakers convened to select Hill, the state Supreme Court denied state Attorney General Alan Wilson's petition for a rehearing.
“As we've said previously, we respectfully disagree with the Court's decision,” Wilson said Wednesday in a statement. “The issue is now in the legislature's hands.”
Republican leaders have quickly advanced differing abortion bans in both chambers this week.
Meanwhile, various changes to judicial selection have been proposed this legislative session. In his State of the State speech, Republican Gov. Henry McMaster called for gubernatorial appointments “with the advice and consent of the state Senate” in a method that would resemble the federal government’s model.
But leading lawmakers do not like the alternatives. They are unmoved by public elections that recently drew millions of advertising dollars in some places. Similarly unappealing to them are gubernatorial nominations like those in New York, where an intraparty fight broke out earlier this year after liberal legislators deemed Gov. Kathy Hochul’s nominee too conservative.
Senate Majority Leader Shane Massey has endorsed “tweaks." One bill would allow the Judicial Merit Commission to advance all qualified candidates, rather than just three potential nominees.
Republican state Rep. Adam Morgan of the House Freedom Caucus reiterated his support Wednesday for a bill that would bar lawmakers' family members from election to judicial office while the legislator serves in the General Assembly.
The concerns are not entirely new. A 1996 law banned lawmakers from seeking court positions until one year after either leaving office or failing to file for reelection. Every person who sat on the state Supreme Court in the 1990s had served in the Legislature at some point in their careers.
No lawmakers expressed concerns over Hill's qualifications. The newest South Carolina Supreme Court justice assumed his position after a lengthy legal career. The 1989 University of South Carolina Law School graduate served as a circuit judge for 13 years before his most recent election to the state appeals court in 2017.
“Admittedly, he is well-to-serve as a Supreme Court justice in this state,” Democratic Rep. Beth Bernstein said Tuesday at a committee hearing on a proposed abortion ban. “But by his election we will not have a female Supreme Court justice in this state — the only state in the nation.”
