SC Supreme Court, on heels of abortion ruling, now all male for the 1st time in 35 years

Meg Kinnard/AP

South Carolina Judge Gary Hill will become the state Supreme Court’s next justice, marking the first time in more than three decades the high court will not have a female justice on the bench.

Hill’s election, reached after a 140-8 vote by both the state House and Senate on Wednesday, comes as the Republican-controlled General Assembly tries to pass yet another abortion ban after unsuccessfully trying in a special session last year.

The state Supreme Court, which struck down the state’s fetal heartbeat law in January, said Wednesday it would not rehear the case.

Hill, of Greenville, succeeds Justice Kaye Hearn, who retired this year after she reached the state-mandated retirement age of 72.

Hearn was the only woman on the bench and the second woman ever to sit on the South Carolina Supreme Court.

Judges in South Carolina are elected by the state Legislature, unlike some states where voters decide the makeup of its judiciary. A candidate’s eligibility qualifications are first vetted by a judicial merit commission before being nominated for judicial office.

A mix of mostly Democrats, and some Republicans, have been quick to call out the lack of diversity on the high court.

“Angry, embarrassed and sad for our state,” said state Sen. Sandy Senn, R-Charleston, one of only five women in the Senate. “Women are mad. They were mad about the repeated arguing of abortion when there are hardly any members of the Legislature that are female.”

State Rep. Annie McDaniel called the all-male bench a disservice to the state.

“We owe it to the state of South Carolina to try to make sure that the high court and other institutions that make major decisions about the lives of people in this state are diverse in all forms, but especially women in this case,” the Fairfield Democrat said.

But not all women in the Legislature say a judge’s ability to be fair and impartial should be centered around their gender.

“In looking at a candidate’s viability in any court situation, gender is not a particular piece that I (consider) in the scenario,” Rep. Shannon Erickson, R-Beaufort, said during a Republican Caucus press conference last month. “I look at their record and their opinions from past service, and look for someone who meets my values and those of the citizens who sent me here.”

Erickson added that while she would like to see a woman on the court, that single demographic wasn’t enough to sway her decision from supporting Hill.

State Rep. Sylleste Davis, R-Berkeley, who also backed Hill, likewise told reporters in January at the news conference that a judge’s qualification should not be based on personal demographics but judicial philosophy.

“I am in full support of diversity at every level of government and in every branch of government,” she said. “However, when I’m making a decision, especially involving the Supreme Court, I’m looking for someone that is a strict constitutionalist, someone that I know will use the constitution to make their decisions.”

A sudden departure during the selection process

On the same day judicial candidates were allowed to seek pledges of support from the 170 lawmakers who elect them, Judges Aphrodite Konduros, 63, of Simpsonville, and Stephanie Pendarvis McDonald, 53, of Charleston, submitted letters withdrawing their bids.

Sen. Katrina Shealy, R-Lexington, said she was disappointed with the race and thought it ended too quickly following Konduros’ and McDonald’s departure.

“The women who were in the race got out the first day (a candidate could solicit support from lawmakers), so it didn’t give (legislators) a chance to vote or commit to either of those candidates” she said. “So, I think that was disappointing for a lot of people.”

While Shealy says she understands that selecting a qualified candidate should be based around their ability to interpret the state’s constitution, she argued that different people of different demographics could translate the constitution differently.

“Having a female perspective on the Supreme Court makes a big difference,” she said.

An attorney, Senn said having just one female justice already wasn’t enough when women make up around 37% of the South Carolina bar.

“We should have two (female justices), and the same thing goes for African Americans, we only got one,” Senn said. “So, we’re all disproportionate with a big ole’ white boys’ Supreme Court, except for one member,” referring to Chief Justice Donald Beatty.

Of another concern, Senn noted, is that Beatty, the second Black chief justice on the state Supreme Court since Reconstruction and the only Black justice on the current court, will soon age out.

Beyond that, other policymakers continue to argue the way judges are selected in South Carolina poses an obvious conflict of interest.

“It just seems so unfair for an attorney (lawmaker) to elect judges and then to appear before those same judges,” McDaniel said.

During a news conference Wednesday, members of the South Carolina House Freedom Caucus said they’ve been pushing for judicial reform for years, at a time when no one was listening.

“Lately, everyone from Republican Party leaders, the House Republican Caucus and even the governor have seemed to see the light on the need and urgency for judicial reform,” said state Rep. Adam Morgan, R-Greenville.

Who is Gary Hill?

Hill, 58, has been an attorney in South Carolina since 1990, according to a candidate qualification report. From 1989 to 1990, he clerked for Judge Billy Wilkins on the 4th Circuit U.S. Court of Appeals before joining law firm Hill, Wyatt & Bannister, where he later became partner after handling a variety of civil and criminal cases and appeals, the report said.

Before being elected to his latest role on the Court of Appeals in 2017, Hill was deemed qualified in 2014 by the judicial selection commission to be an appeals court judge but withdrew from the election.

“I have done my level best to contribute to the fair and impartial administration of justice. There is nothing more professionally satisfying than having a positive impact on others, and knowing you made a difference in an important matter in a fellow person’s life,” Hill said, in part, in his candidacy submission to the vetting committee, the report says.

Contentious abortion ban

The election of man to replace the only woman on the court comes after the state Supreme Court struck down the state’s fetal heartbeat law, which bans abortions after a heartbeat can be detected, usually around the sixth week of pregnancy.

Proponents of the heartbeat law asked the Supreme Court for a rehearing, which was denied.

“As we’ve said previously, we respectfully disagree with the Court’s decision,” S.C. Attorney General Alan Wilson said. “This issue is now in the legislature’s hands.”

Lawmakers are trying again pass an abortion ban, with both chambers debating competing proposals.

The House Judiciary Committee on Tuesday moved forward with a proposal to ban abortion from the point of conception, with exceptions for the life of the mother, rape, incest and fatal fetal anomaly. Debate on the full House floor is expected next week.

The Senate also is looking at a six-week ban written to specifically respond to the state Supreme Court decision.

“We want to send the message to the court that we read the opinion, we hear you, we’re trying to respond to that to address those concerns,” said Senate Majority Leader Shane Massey.

Under the Senate proposal, abortions would be banned after a heartbeat is detected, with exceptions for rape and incest up to 12 weeks, as well as exceptions for fatal fetal anomaly and preserving the life of the mother.

But state Sen. Richard Cash, R-Anderson, is trying to change the bill to ban abortions from the point of conception, with the only exception being protecting the life of the mother. An effort to kill that amendment failed Tuesday, as 12 Democrats joined by 12 Republicans refused to vote it down and force debate to continue.

Massey said he believes enough members will vote to kill the amendment and ultimately pass the bill. But if not, the Senate may move on.

The dueling bills set up a possible repeat of last fall, when both chambers could not agree on how to respond to the U.S. Supreme Court’s Dobbs decision striking down Roe v. Wade, allowing states to say whether abortion is legal within their borders.