COLUMBIA, SC — After the State House emptied out late last week, S.C. Supreme Court Chief Justice Jean Toal huddled on a chair in the lobby with her chief vote-getting lieutenant, Rep. Jenny Horne, R-Dorchester.
No comment, they told a reporter when asked how many votes Toal had.
Nearby, in the same lobby, Toals rival for the chief justice post, Associate Justice Costa Pleicones, stood contacting supporters on his cellphone.
Asked his vote count, Pleicones smiled, More than she has I can tell you that.
Welcome to the secretive, high-stakes race for the states $148,350 top judicial post a combination of poker, chicken and blind mans bluff.
Its historic not within memory has a sitting chief justice been challenged by an associate justice. Not within memory has a chief justice, like Toal, refused to step aside when approaching the traditional retirement age of 72 and let the next most-senior justice on the five-person court assume the top spot. Its also historic because Toal is the courts first female justice, serving as chief since 2000.
The prize in this Game of Thrones? The pledges of support from the 170 members of the House and Senate. Under the state Constitution, lawmakers elect Supreme Court justices and other state judges. The joint-session vote is Feb. 5.
The goal for both Toal and Pleicones these days is to round up pledges of support before that election so many that finally, the loser will bow out of the race gracefully to avoid the humiliation of being trounced in a public vote. The winner will need 86 pledges. Pledges are gathered in secret by each side, so no one really knows how many pledges the other has.
An irony in the race is it is for a 10-year term. Justices traditionally retire before or at 72. Toal is 70, born Aug. 11, 1943. Pleicones is 69. Six months younger than Toal, he will turn 70 at the end of February.
Both, it appears, want to cap their career as chief justice.
Pleicones thought Toal would retire and had told people he was going to run when Toal, to his surprise, filed for re-election, Pleicones supporters say.
The race is tight, according to a dozen interviews with lawmakers last week. All agree both are highly qualified. Neither Toal nor Pleicones has anywhere close to a majority. Many like Rep. Kirkman Finley, R-Richland remain uncommitted, or wont say publicly who they are for.
Meanwhile, the race is straining friendships, testing old political alliances and may embarrass lawmakers who go for the loser.
A lot of senators are terrified of this race, said Sen. Greg Gregory, R-Lancaster. Some of their professions are tied to it, and others just dont want to be on the losing side. A lot of people are just sitting on the fence right now waiting on one or the other to get a majority before they commit.
Sen. Joel Lourie, D-Richland, said, In my 16 years of service, this is probably one of the most competitive races Ive experienced. Both sides think they have the edge, which to me means its too close to call.
Both Gregory and Lourie said they like and greatly respect Toal, but after much thought, they will vote for Pleicones.
Toal supporters voice their conclusions in the same way.
Senate President Pro Tem Sen. John Courson, R-Richland, said he will vote for Toal, but he agonized over the decision because both candidates are longtime friends of his and excellent jurists.
Shes done a superb job as chief justice and should be allowed to serve until shes 72. But I hate to see a race between those two fine individuals. Its not a fun thing to go through, Courson said.
Rep. James Smith, D-Richland, said, Im supporting the chief justice. Theyre both wonderful people, but this would set a horrible precedent for this institution to turn out a sitting judge, much less the chief justice, and not follow the seniority process weve had since the court was created.
The precedent is important because, to preserve the independence of judges, they shouldnt be turned out of office without good cause, Smith said.
But Pleicones supporter Rep. Todd Rutherford, D-Richland, said Toal is the one whos breaking precedent.
Shes breaking precedent by staying in that spot and not relinquishing it, said Rutherford. Shell turn 72 in 18 months. And shes running for a 10-year term. Does she intend to stay in office 10 more years?
In statements to the judicial screening committee last year, both Toal and Pleicones signaled they would step down at 72. However, Toal said, I intend and Pleicones said he will, statements that conceivably could leave Toal wiggle room to stay longer if she changes her mind.
Toal has held the post almost 14 years. The three previous chief justices served six years, six months, and three years, respectively.
In South Carolina, the chief justice serves as the head of a $65 million-a-year judicial system that includes more than 400 judges, the Supreme Court, court of appeals, circuit court, family court and local magistrates.
Toal served in the House as a Democrat and was in private practice as an attorney before being elected to the court.
She is known as an advocate for getting an online case-management system for all S.C. judges up and running, pushing for and implementing a more open court system and working toward an e-court system that would allow the public to access documents in a court case anywhere in the state.
Pleicones served as a public defender, a city judge and a private-practice attorney.
Both Toal and Pleicones have their lieutenant lawmakers rounding up votes in each chamber.
In the House, Reps. Tommy Pope, R-York, Rep. Greg Delleney, R-Chester, and Rutherford are working for Pleicones. Horne and House Speaker Rep. Bobby Harrell, R-Charleston, are working for Toal.
In the Senate, Sen. Yancey McGill, D-Williamsburg, is working for Toal; Sens. Greg Hembree, R-Horry, and Shane Massey, R-Edgefield, are rounding up votes for Pleicones.
Many predict the race may come to a rare public vote if a large group of lawmakers remains uncommitted until the end and neither candidate drops out.
In such races, anything can happen no one knows that better than Toal.
In the 1980s, she was a perennial loser in races for the Supreme Court. Although she was chairman of the House Rules Committee and regarded as brilliant, she also had a reputation of having a temper and hadnt paid her dues by serving as a circuit judge first.
She ran for a vacant justice seat two times, losing each time. The third time, when she entered the race for a vacant Supreme Court seat, it was also against a clear front-runner, Judge Rodney Peeples. Peeples was so highly regarded no one else bothered to enter.
But in the final weeks of that race, publicity over Peeples ethical problems surfaced; his once-firm pledges of support withered away. Several days before the election, Peeples dropped out of the race.
Only Toal was left, and no one else could become a candidate because filing deadlines had passed. So, by a fluke of history, the longshot Toal won a prestigious seat on the Supreme Court.
McGill predicted that by the end of next week, Everybody will have a better view of where the votes will be going. I think it will be clear when the election occurs.
Hopefully, at that point, the candidate without the majority will drop out, McGill said, adding a public vote was possible. They may not want to drop out.
Reach Monk at (803) 771-8344.