A historic battle is in the offing for the chief justice position on the five-member S.C. Supreme Court.
On Wednesday, the Judicial Merit Selection Commission confirmed that the two senior most associate justices on the S.C. Supreme Court, Donald Beatty of Spartanburg and John Kittredge of Greenville, have made formal expressions of interest in running for the the chief justice position.
The race is historic because not within memory has a junior associate justice challenged the most senior associate justice for a vacancy in the chief justice post created by a retirement.
Normally, Beatty, as the senior justice, would run unopposed for the chief justice post and be elected by the S.C. General Assembly. Normally, Kittredge would wait his turn and be elected when Beatty retires at the age of 72. Beatty is now 63; Kittredge, 59.
However, in recent months, some Republican members of the General Assembly have openly criticized two of Beatty’s opinions as “judicial overreach” and indicated they will question, if not oppose, Beatty’s candidacy.
Kittredge was on the losing side of Beatty’s opinions that Republicans criticize. Republican lawmakers, who are in the majority in the General Assembly, have indicated they would be more comfortable with a chief justice like Kittredge, whose decisions are more likely to reflect their views.
Carl Tobias, a University of Richmond law professor specializing in judicial selection, said Wednesday that lawmakers who would pick a chief justice because that person would rule the way the majority in the Legislature wants him to rule might threaten judicial integrity.
“It’s not a good thing,” Tobias said. “You want a justice to be as free of politicization as they can be. You want them to be independent, and you don’t want them looking over their shoulder at the Legislature and have that influence any of their decisions.”
The two Beatty decisions that Republicans cite as “judicial overreach” have to do with consumers and with poor rural schoolchildren. In a 3-2 pro-consumer decision, Beatty ruled that auto dealers should have based vehicle closing fees to consumers on an actual cost of a vehicle during a sale. In 3-2 decisions concerning low-income rural school districts, Beatty ruled the General Assembly must find a way to improve education for children in those districts.
Another dimension to a Beatty-Kittredge contest is racial. If elected, Beatty would be the second African-American chief justice in a state whose population is one-third black. If he loses to the younger Kittredge, Beatty likely will never be chief justice, and it could be more than a decade before African-Americans have a justice in a position to be chief again.
Last year, Beatty was among those being considered by President Barack Obama for nomination to one of two vacancies in South Carolina’s federal judgeships.
Currently, Beatty is said to be part of a two-person deal being pushed by some, including Rep. Jim Clyburn, D-S.C., to fill those vacancies. The other is Jim Coggins, a Spartanburg lawyer favored by Sen. Lindsey Graham, R-S.C.
However, with less than a year to go in Obama’s term, a looming U.S. Senate battle over a successor to the late U.S. Supreme Court justice Antonin Scalia and possible resistance in the U.S. Senate to any Obama judicial appointment, Beatty’s ascension to the federal bench would be anything but assured.
According to the Judicial Standards Selection Commission, both Beatty and Kittredge began the chief justice candidate process by picking up a packet of application material to fill out as a step toward applying for the position. To formally declare their candidacy, they must return the completed packets by noon March 7.
The General Assembly will elect the new chief justice May 25 to succeed current Chief Justice Costa Pleicones, who will retire Dec. 31 at age 72.