COLUMBIA, S.C. — No woman is expected to serve on the South Carolina Supreme Court for the first time in 35 years.
Lawmakers appear poised to replace Justice Kaye Hearn with Judge Gary Hill after the two other candidates under consideration — both women — dropped out. Five men would sit on the bench if lawmakers confirm Hill at a Feb. 1 joint session.
The Judicial Merit Selection Commission’s chief council confirmed to The Associated Press that Judge Stephanie McDonald and Judge Aphrodite Konduros submitted letters of withdrawal on Tuesday — the first day the three nominees could seek lawmakers’ support. In a statement to the AP, Hill called the other two judges “accomplished colleagues” and “friends for whom I have great respect.”
“I am honored and humbled by the tremendous support of the legislature,” Hill said. “If elected, I will continue to serve the citizens of South Carolina with an unwavering commitment to the rule of law, as I have for nearly 20 years.”
The often-overlooked function of government has received increased scrutiny in GOP-controlled South Carolina ever since a recent state Supreme Court ruling delivered a blow to a major Republican priority. Frustrated after justices struck down the state’s six-week abortion ban as a violation of the state's right to privacy, Republicans have shown renewed interest in reexamining the state’s fairly unique judicial selection process.
In most states, voters or the governor take the lead in choosing who sits on state courts. Alongside Virginia, South Carolina is one of two states where lawmakers exercise near-complete power in 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 state Legislature.
"This is the first time I've ever seen a ruling to deal with abortion on the state level, now we're going to make it a litmus test– not only that we’re going to use it to push women out of the process– that should not be the case. People should not stand for it," said Rep. Todd Rutherford (D-Richland) who sits on the Judicial Merit Selection Commission.
In the wake of the state Supreme Court's narrow 3-2 decision, leading Republican politicians pledged more scrupulous candidate screenings. Gov. Henry McMaster called for “more transparent and accountable” processes in his inauguration speech. Senate Majority Leader Shane Massey said the abortion ruling has invited questions from lawmakers about judicial philosophy.
Rep. Micah Caskey, a member of the Judicial Merit Selection Commission, said the commission evaluates qualifications and does not analyze philosophy.
But Caskey said the recent Supreme Court ruling has definitely changed the approach taken by his colleagues in the General Assembly, who he expects to increasingly consider judicial philosophy when they vote on judges.
“We’re not going back,” Caskey said. “Legislators, for the foreseeable future, are absolutely going to incorporate that into their own individual decision-making processes.”
Republicans like Sen. Josh Kimbrell, who pledged support for Hill, told News 19 gender had nothing to do with his decision.
"I would say that we certainly looked at their record of where they've stood on issues in the past, where they ruled in the past, and we can sort of interpret where they may come down," said Kimbrell. "For me it comes down to do you interpret the constitution as is and the law as is or do you want to put your own meaning into there."
The lead opinion in that monumental decision on the state's new abortion (fetal heartbeat) law was written by Hearn. During oral arguments over the state’s abortion law this past October, Hearn drew attention to her status as the sole woman on the high court.
Hearn, who left a vacancy after reaching the court's retirement age of 72, was only the second female justice in the court's history. She followed Jean Toal, who became the state's first female justice in 1988. When Toal was sworn in as chief justice in 2000, she invited her two daughters and 100 other women who said Toal inspired them.
The number of women entering the legal profession rose over the course of Toal's career. Toal was only one of a handful of women lawyers when she passed the Bar in 1968, but one of about 2,500 when she took over the high court three decades later.
“I join those women lawyers in rejoicing today,” Elizabeth Van Doren Gray, who would later become president of the South Carolina Bar, said at Toal's swearing in as chief justice. “You have set a standard for us to strive for, and just to keep us on our toes, you have raised it.”
Those rising numbers contrast with what is set to become an all-male bench after Hill's widely expected selection next month. According to a May 2022 report by the Brennan Center for Justice, men hold 59 percent of state Supreme Court seats across the country. South Carolina's bench had been one of nine high courts with just one woman prior to Hearn's vacancy, according to the report.
Sen. Katrina Shealy said she found all three candidates to be qualified but was “disappointed” that lawmakers wouldn’t have a choice. While Shealy said any judge should rule by the constitution, she added that gender representation is as important on the judiciary as it is in the General Assembly. She questioned how the high court will look next year when the Legislature is tasked with replacing Chief Justice Donald Beatty, the only Black person on the bench.
“Not that it should matter, but it does have a very bad appearance,” said Shealy, who noted she was the only woman in the Senate when she first got elected. “It’s almost like South Carolina is moving backward instead of forward.”
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Associated Press writer Jeffrey Collins contributed to this report. James Pollard is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.