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SC Supreme Court becomes all male as Gary Hill elected newest court justice

South Carolina Supreme Court

Judge Gary Hill waves after lawmakers voted to make him the next state Supreme Court justice on Feb. 8, 2023. Hill's replacement of the retiring Justice Kaye Hearn means South Carolina is the only state without a woman on its Supreme Court. James Pollard/AP

COLUMBIA – A joint session of the S.C. General Assembly voted to elect Appeals Judge Gary Hill as the new justice on the state Supreme Court, capping off a contentious race to replace Justice Kaye Hearn, the author of the controversial January ruling that struck down the state's six-week abortion ban.

The Feb. 8 election in which Hill's two opponents, both female appeals court judges, dropped out the same day legislators were legally allowed to begin pledging their support, makes South Carolina the only state in the country without a woman on its highest court.

The vast majority of the Legislature's Republicans and Democrats, 140, voted for Hill, while eight legislators voted against him and more than a dozen voted present or abstained.

The "no" and "present" votes came primarily from the Senate's five women and members of the ultra-conservative House Freedom Caucus, who, for very different reasons, have objected to the process.

In a statement, Hill said he was honored by the bipartisan support.

"With God's grace, I will continue to do my best to uphold our great tradition of the rule of law, preserve and defend our hard-won constitutional principles without fear or favor," he said.

House Freedom Caucus members, who have called the judicial selection process opaque and corrupt, forced roll-call votes on all the judicial races, a break with custom by which court votes were practically automatic in races with only one candidate.

The vote came under unusual scrutiny after the state Supreme Court ruled the six-week abortion ban violated the privacy provision of the state constitution, prompting fury from anti-abortion Republicans who accused the court of judicial activism.

Those same Republicans saw the judicial election as an opportunity to flip the court’s majority by replacing Hearn with someone more receptive to abortion restrictions.

As if to underline how central abortion has become to the election, hours before the Legislature voted, the state Supreme Court rejected petitions for rehearing of the abortion decision filed by the governor, the state attorney general, and the state’s legislative leadership by the same 3-2 majority that made the original ruling.

Republicans have repeatedly called Hill a “conservative” and a “strict constructionist.”

At Hill’s 2017 hearing to join the Court of Appeals he pledged to be “very deferential” to the Legislature.

“And I'm a firm believer in a strict separation of powers,” he said. “I believe in deference to the other branches to do what the Founders intended them to do."

Along with cases on abortion restrictions, the court is expected to deal with other highly politicized issues on school vouchers and the death penalty in the coming term.

The election took a dramatic turn in its final weeks when Sen. Sandy Senn, R-Charleston, accused the House Republican Caucus of conducting an informal poll of the race at a caucus meeting before pledging was legally allowed to begin. She alleges there was an agreement on Hill along with pressure on the two female candidates to drop out.

In an impassioned Senate floor speech, Senn, who supported Judge Stephanie McDonald, one of the other Supreme Court candidates, said the lack of female representation in the judiciary is an embarrassment.

Abortion-South Carolina - Senn (copy)

Republican South Carolina Sen. Sandy Senn expressed her fury over the selection of a new justice for the state Supreme Court, which will soon be all male, on Jan. 25, 2023. File/AP Photo/Jeffrey Collins

Republican House members refused to comment on whether an informal poll took place but said the majority had come to support Hill independently due to his qualifications and judicial philosophy.

“This is a sad day for South Carolina as this General Assembly caused us to go backward 30 years in time, which was the last time we had an all-male Supreme Court,” Senn said in a statement after the vote. “They will not be happy until there is a total abortion ban in all circumstances.”

The upper chamber's other female members, Margie Bright Matthews, D-Walterboro, and Mia McLeod, I-Columbia, voted against Hill, while Katrina Shealy, R-Lexington, and Penry Gustafson, R-Camden, voted present.

Sen. Richard Cash, R-Anderson, voted present and Sen. Billy Garrett, R-Greenwood, abstained. The pair are staunch abortion opponents who had supported indefinitely delaying the Supreme Court vote.

In the House, three members of the Freedom Caucus voted against Hill while many of the rest did not vote. Sen. Darrell Jackson, D-Hopkins, and Rep. Annie McDaniel, D-Winnsboro, voted against Hill.

Rep. Adam Morgan, R-Taylors, chairman of the Freedom Caucus, called for the judicial selection process to be totally revamped at a press conference the morning before the vote, saying it was Republicans' own support for the current system that allowed the three justices who overturned the abortion ban to get on the court.

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Rep. Adam Morgan, R-Taylors, chairman of the ultra-conservative House Freedom Caucus, speaks to reporters in the Statehouse lobby on Jan. 31, 2023. File/Alexander Thompson/Staff

"Why are we letting legislators pressure judges into dropping out when we don’t even accurately know the count or who’s pledged to whom?" Morgan said, echoing Senn's critiques from a different perspective. "We do not have transparent elections of judges and that’s a serious issue no matter what party you’re from."

Judicial reform has gained widespread attention and support in the wake of the ruling and the acrimonious Supreme Court contest. In his State of the State address, Gov. Henry McMaster called for judges to be nominated by the governor with the advice and consent of the Senate. House Majority Leader Davey Hiott, R-Travelers Rest, has said that Speaker Murrell Smith, R-Sumter, intends to introduce a package of judicial reforms this session, while judicial reform bills have been introduced in the Senate.

Judicial elections have grown more contentious in recent years. In 2019, Black lawmakers walked out in protest over diversity on the bench after who they thought was a vastly more qualified African American candidate lost to a White candidate. Last year, a hard-right Upstate Republican called for a roll-call vote when Hearn was up for reelection, which she won by a vote of 122-14, with conservative legislators dissenting.

Hill is a Greenville County resident and attended Wofford College before receiving his law degree from the University of South Carolina School of Law in 1989. He was in private practice doing civil, criminal and appellate law in Greenville before he was elected as a judge for the 13th Judicial Circuit in 2004. He was elected to the state Court of Appeals in 2017.

Seanna Adcox of The Post and Courier staff contributed to this report.

Alexander Thompson covers South Carolina politics from The Post and Courier’s statehouse bureau. Thompson previously reported for The Boston Globe, The Christian Science Monitor, and local papers in Ohio. He spent a brief stint writing for a newspaper in Dakar, Senegal.

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