By Maayan Schechter

The South Carolina General Assembly will vote June 5 to elect a new justice to the state Supreme Court. Chief Justice Donald Beatty is retiring this year because of the state's 72-year age limit for judges.

One man and two women, of whom one is Black, are vying for an open seat on the South Carolina Supreme Court.

Facing the Republican-controlled Legislature is yet another diversity predicament in the upcoming June 5 state Supreme Court election.

Early last year, lawmakers elected now-Justice Gary Hill, a well-respected and well-liked judge, to fill a vacancy opened by the required retirement of the bench’s only female justice, Kaye Hearn. The election occurred weeks after Hearn wrote the majority opinion in the court’s 3-2 decision striking down the state’s then-six-week “fetal heartbeat” abortion ban.

Hill’s election left South Carolina as the only state with an all-male state Supreme Court.

Now this year, the bench is losing its sole Black justice: Chief Justice Donald Beatty, who, like Hearn, must retire from the bench because of the state’s 72-year-old retirement age for judges.

“They made their own situation worse than it needed to be,” said Lynn Teague, with the South Carolina League of Women Voters.

Teague said the Legislature could have avoided this dilemma before Hill’s election, when he faced two women challengers who withdrew before the election.

South Carolina and Virginia are the only two states where lawmakers, not voters, elect most judges.

“I think they’re (lawmakers) unlikely to consider diversity as much as they should,” Teague said. “(It) will not be weighted as heavily as the real benefits of a diverse perspective would dictate.”

Eighteen other states do not have a supreme court with a person of color, according to the Brennan Center for Justice, which in part studies diversity in supreme courts across the country.

That number includes 12 states where people of color make up at least 20% of the population.

And there are no Black justices in 24 states, according to the Brennan Center.

The three candidates running for Seat 3 on the S.C. Supreme Court are:

• S.C. Court of Appeals Judge Judge Blake Hewitt, 45, of Conway
• At-large Circuit Court Judge Jocelyn Newman, 46, of Columbia
• S.C. Court of Appeals Judge Letitia Verdin, 53, of Greenville

As of noon May 22, candidates can now accept or ask for legislative support.
The lack of diversity on the bench has concerned advocates for years.

Late last year, as lawmakers considered changes to the judicial selection and election process, incoming state Supreme Court Chief Justice John Kittredge said he was aware of at least four Black male judges who were leaving the bench due to retirement — all in the span of roughly 18 months.

The retirements, which includes Beatty, are in a state where the population is more than 26% Black.

“We’re losing, have lost already and are losing, four African American men judges, who I personally know and consider to be friends,” Kittredge testified before a S.C. House panel. “It’s a hit on the intellectual, institutional knowledge that they have brought to the system. And it’s a hit in terms of diversity.”

At that same hearing, state Rep. Gilda Cobb-Hunter, an Orangeburg Democrat who is Black, said there are too many barriers for Black judicial candidates.

Cobb-Hunter said Black lawyers tell her, "It's not worth me going through that process. It's not worth me coming up with that Legislature, trying to convince people to vote for me."

South Carolina’s process for selecting and electing most judges is driven by the state Legislature.

Lawmakers make up six of the 10-member Judicial Merit Selection Commission, which vets judicial candidates and forwards their nominations — currently up to three per race — to the full General Assembly for a final vote.

And the final election is held by all 170 legislators, split by 46 in the Senate and 124 in the House.

Over the past year, the process has become the focus of public criticism by the Statehouse's most conservative lawmakers, namely the 16 or so members in the House Freedom Caucus, elected prosecutors, and the state’s Republican attorney general.

In part, some, including lawmakers, have called on the Legislature to remove themselves from the process entirely. Others want lawmakers who serve on the vetting committee, all of whom are currently also attorneys, off the nominating panel entirely.

One of those lawmakers includes state Rep. Joe White, a freedom caucus member, who has led the group’s push for so-called judicial reform. The group also wants the removal of the three-candidate cap, a cap White told SC Public Radio that hurts conservative judicial candidates' chances.

“I have no problem with every one of the members being a lawyer. I really don’t. If all 13 members are lawyers, I don’t have a problem with that,” White said of the vetting committee, known in short as JMSC. “I do have a problem with a lawyer who’s a legislator being able to benefit in his practice or potentially be a judge because he was a lawyer-legislator.”

Legislation to tweak the system, not a complete overhaul, is moving through the Legislature.

Currently, negotiations between the two chambers are underway to hash out a deal that would include more input from the governor and the removal of the three candidate cap, among other changes.

Back at a December hearing about the process, state Rep. Micah Caskey, a Lexington Republican and an attorney who sits on the judicial nominating committee, knocked critics who he argued were using their efforts to score a political objective.

“I want the system to be better. And I don’t think the way to getting better is to throw anything at the wall and see what sticks,” Caskey said. “I think being precise with your language, I think being grounded in objective truth is important.”

The complete removal of lawmakers from the process is not part of either side’s bill.

“There’s no perfect judicial selection system, so every way of choosing judges has advantages and disadvantages,” said Alicia Bannon, director of the judiciary program at the Brennan Center for Justice.

There can be substantial downsides in a system like South Carolina’s, she said.

There’s the chance, for instance, she said of cloudy accountability in the decision-making process, back-room dealing, nepotism and self-dealing. Legislative dysfunction can also leak into the selection process, she said.

There is, however, perhaps one big positive, she added.

“You don’t have the same dynamics of money pouring into a judicial election and the campaigning that judges have to do directly with the public and with potential donors, that can create really significant conflicts of interest, or potential conflicts of interest at least,” Bannon said. “And I think do a lot of damage to trust that the courts are independent from politics.”

At least for supreme court races, the Brennan Center has recommended that states move away from elections. Instead, the center suggests a commission nominate candidates to the governor.

Bannon said the nonprofit is especially concerned about the increased political polarization of the courts across the country, where millions if not tens of millions of dollars can be poured into races.

“It’s dangerous for our democracy when judges are in the rough and tumble of politics,” which can threaten public confidence and the integrity of the court, Bannon said.

In South Carolina, politics will inevitably be a part of lawmakers’ upcoming Supreme Court decision.

In the past year, the high court has heard arguments over controversial state laws that center on execution methods for death row inmates and whether public tax dollars can be spent on private school vouchers.

And, last August, the new all-male court upheld the state’s new six-week abortion ban.

Read and watch the interview 

Read and listen to the interview at South Carolina Public Radio and Wyoming Public Radio.