A decades-long tradition whereby the S.C. General Assembly automatically elects the most senior associate justice of the S.C. Supreme Court to succeed a retiring chief justice might die this year.
Conservative Republican lawmakers in the General Assembly, whose 170 members elect justices and chief justices, say they have serious questions about senior associate justice Donald Beatty — questions mainly focused on opinions Beatty has co-authored or joined in in recent years.
In interviews with The State newspaper this week, Rep. Rick Quinn, R-Lexington, and other Republicans indicated they hope the next-most-senior associate justice, John Kittredge, challenges Beatty.
Neither Beatty nor Kittredge responded Friday to State newspaper queries about the upcoming race and lawmakers’ concerns.
“It’s possible Beatty may have no opposition, but I just think it’s obvious that Kittredge is running,” said Quinn, a former House majority leader, who said many lawmakers are displeased with some Beatty rulings such as ones on the Abbeville school district case.
In those cases, the court, basically, ruled in 3-2 decisions that the state Constitution requires the General Assembly to upgrade needy rural schools. Beatty was with the majority; Kittredge was in the minority and wrote that the Supreme Court majority was acting as a “super Legislature.”
If Kittredge, who is white, beats Beatty, an African-American who served in the Legislature as a Democrat, in a tradition-breaking election, that event would be noted far beyond South Carolina’s borders, said Bobby Donaldson, a University of South Carolina associate professor of history.
“It would be truly a national story,” Donaldson, mentioning that last year, the state achieved a degree of racial harmony after relatives of the nine African-Americans killed at the Mother Emanuel AME Church in Charleston forgave their alleged white supremacist killer and the Legislature voted to remove the Confederate flag he regarded as an object of worship from the state capitol grounds.
“Here we are in the post-Emanuel 9 moment of the state where we are working toward interracial collaboration and dialogue,” Donaldson said, “and this will be quite instructive on how much progress we’ve actually made.”
The names of candidates for the chief justice post won’t be officially released until March 7, the last filing day with the Judicial Merit Screening Commission. The election before members of both houses of the General Assembly is May 25.
Meanwhile, speculation that Beatty will be challenged has been percolating for weeks.
“There’s an anticipation there will be more than one candidate,” said Rep. Bruce Bannister, R-Greenville, assistant House majority leader.
For years, chief justice elections were largely ceremonial, Bannister said, adding that nowadays, the General Assembly “is more conscious of our responsibility to elect the leader of the third branch of government. Whoever is in it, I think there will be a lot more discussion of how they would run the court and what their philosophy is than there has been in the past.”
Two years ago, in an unprecedented move, Justice Costa Pleicones challenged then-sitting Chief Justice Jean Toal when Toal ran for re-election. She defeated him even though she had only a year to serve on a 10-year term before retiring.
In this case, the chief justice seat will be vacant because Toal and Pleicones both will have retired.
African-American legislators say they would prefer that lawmakers abide by tradition.
“I’ve always supported the seniority process on the Supreme Court,” said Sen. John Matthews, D-Orangeburg, who has served in the General Assembly 41 years. “That’s the way it ought to be. I would hope nobody would try to disrupt the process and try to block Justice Beatty.”
If Beatty doesn’t win the chief justice post, future justices would be wary of offending the General Assembly, Matthews said. “It would send a chill over the Supreme Court.”
Rep. Carl Anderson, D-Georgetown and chairman of the Legislative Black Caucus, said Beatty is a fair justice who weighs the facts and should be elected chief justice. As for the Abbeville decision, “all of us know that the rural schools in this state are not up to standards.”
Some white lawmakers agree.
“The traditional process by which the chief justice is chosen has served our state and our court well,” said Rep. James Smith, D-Richland. “I don’t see any reason why we should change. Selecting justices to achieve a political outcome is not what it’s about.”
But Sen. Mike Fair, R-Greenville, said, “It’s been a tradition, but it’s a tradition of the Supreme Court. It’s not a tradition of the General Assembly.”
Fair said many lawmakers, including himself, want justices who are “following the constitution, and we think the Supreme Court has wavered over time.”
In interviews, Fair and other conservative Republican lawmakers said their reservations about Beatty included, beyond Abbeville:
▪ Beatty’s majority opinion in a 3-2 decision last fall that upheld the right of consumers to sue and collect damages from auto dealers over closing fees charged during a purchase. Kittredge was in the minority.
▪ Remarks Beatty made at a 2013 state prosecutors conference in which he warned against unethical practices being committed by some prosecutors. Thirteen of the state’s 16 solicitors, who considered the tone of Beatty’s remarks to be threatening, signed a letter afterward saying they didn’t want Beatty hearing appeals in their cases.
“One can only conclude after his remarks that he has an extreme bias against prosecutors,” wrote 1st Circuit Solicitor David Pascoe in a November 2013 letter signed by 11 other solicitors, both Republicans and Democrats.
At the time, Beatty’s remarks were supported by defense attorneys, who said the abuses Beatty was speaking out against were real.
Pascoe on Friday said he has spoken to Beatty and considers the matter closed. “He explained to me his intention, which was to warn prosecutors. At that time, he vented, and we vented, and we got over it,” said Pascoe, immediate past president of the state solicitors’ association.
Donaldson said the Beatty candidacy faces a different political landscape than many prior chief justices had in their races. Conservative Republicans are on the rise in the Legislature, and “to think that they would just simply follow tradition would be naive. We’re in a different moment.”
The vacancy on the five-member court is being created by the retirement of Chief Justice Costa Pleicones, who turns 72 — a judge’s mandatory retirement age — this year.
Sen. Kent Williams, D-Marion, a Black Caucus member, said if Kittredge runs against Beatty, “It will be a race like you’ve never seen before.”
THE COURT’S MOST SENIOR JUSTICES
Donald Beatty, 63, was first elected to the S.C. Supreme Court in 2007. Before that, he was a circuit court judge from 1995 to 2003 and a Court of Appeals judge from 2003 to 2007. He served as a state representative from Spartanburg County from 1991 to 1995. His current term on the court ends in 2020.
John Kittredge, 59, was elected to the S.C. Supreme Court in 2008. Before that, he was a family court judge from 1991 to 1996, a circuit court judge from 1996-2003 and a Court of Appeals judge from 2003 to 2008. His current term ends in 2018.