There never was a question that Jean Toal and Costa Pleicones both would be found qualified to be chief justice of South Carolina — both are highly regarded for their intelligence and knowledge and capabilities and integrity — so even the unprecedented nature of Justice Pleicones’ effort to take out a sitting chief couldn’t attract a crowd of more than a dozen spectators to the campaign’s first and likely only public forum.
That made it all the more notable that Associate Justice Don Beatty was among them.
The former Spartanburg House member told me he just wanted to observe the screening before the Judicial Merit Selection Commission, since it was six years since he last went through the process. He always has enjoyed being cryptic.
How this contest turns out could have huge implications for whether Justice Beatty becomes chief justice when Costa Pleicones retires at the end of 2016. Of course, it also could have huge implications for whether Mr. Pleicones ever becomes chief justice.
Up until now, none of that would have been in question. The high court always has run on the seniority system, much like the state Senate did before Republicans took the majority in 2000 and modified it to a party-based seniority system. On the court, the chief serves until the end of the year he turns 72. Then the Legislature elevates the next senior justice to chief, and the process repeats. So normally, Justice Toal would retire at the end of December 2015, then Justice Pleicones would serve as chief until December 2016, and then Justice Beatty would be chief for the next eight years.
But things never have been normal where Jean Toal is involved, and by that I’m not referring to the fact that she was South Carolina’s first female justice and chief justice.
In 1988, she became the first non-judge elected to the high court in more than three decades. That happened after ethics questions derailed the candidacy of Circuit Judge Rodney Peeples, who entered the race with more than enough votes sewed up to win.
Eight years later, Mrs. Toal became the first sitting justice since 1893 to be opposed for re-election, when Circuit Judge Tom Ervin challenged her amidst anti-tax groups’ absurd efforts to paint her as a liberal; her support among legislators was so overwhelming that he dropped out of the race less than two hours after they were allowed to start making commitments.
Now she’s the first chief justice since at least the 1800s to be opposed for re-election.
Justice Pleicones wasn’t asked directly during his screening hearing what compelled him to challenge his lifelong friend, and what he did have to say about why he wanted to be chief was not particularly inspiring: It’s always good to have a fresh perspective, and I have a lot of experience. But one of the themes of criticism the chief justice received in anonymous surveys from lawyers stemmed from what Justice Pleicones has called her broken promise to retire when her term ends next year, which would give him an extra year and a half on the bench.
Mrs. Toal told the commission that she had in fact indicated to “my court and my friends” that she would retire early but that of course she never had made a final decision. She finally concluded, she said, that the judicial system would be better served by her finishing her work on important modernization projects, which very well could become her legacy as chief justice.
Clearly, the Legislature will break precedent if it elects Mr. Pleicones. But even if it re-elects Mrs. Toal, the status quo already has been interrupted, making it much easier for lawmakers to break with tradition and skip over Mr. Pleicones and, who knows, perhaps skipping over Mr. Beatty, possibly even selecting a chief justice who isn’t already on the court.
The days of this tradition already were numbered. Some Republicans in the Legislature — and lots outside, particularly of what we now call the tea-party variety — have been grumbling for years about having a court full of former Democratic legislators. I suppose it’s understandable that people would be confused about the role that partisan politics plays on the S.C. Supreme Court — none — given the diet of hyperpartisan Washington politics on which a frightening number of South Carolinians feed, forming not only their world views but their state views.
Although the U.S. Supreme Court is in fact composed of two well-defined ideologies, you’d be hard-pressed reading state Supreme Court decisions to guess the partisan or ideological inclinations of the justices. So I was a little disappointed when Justice Toal, asked about complaints that she’s too “political,” dismissed them by noting how well she has gotten along with the Legislature and governors, even as their politics have changed.
The political temptation Supreme Court justices face has nothing to do with party or ideology. It is the temptation to kowtow to the Legislature, whatever the Legislature’s partisan leanings or political philosophy. It’s to look the other way when the Legislature tramples on our state constitution. It’s to pretend that the laws say what the Legislature meant them to say rather than what they actually say.
That temptation must be greatest for the chief justice, whose dual role as chief executive officer of the entire judicial branch of government brings with it the heavy burden of convincing the Legislature to fund the courts adequately, and to keep lawmakers from exacting retribution, financial or otherwise, when court decisions go a way they don’t like.
One of the hallmarks of the Toal court has been a steady move toward judicial independence, toward calling out the Legislature when it needs to be called out. But as Justices Pleicones and Beatty both have demonstrated in some opinions in which they were more willing than the chief justice to rein in the Legislature, this is still a court that isn’t always as independent as it could be. And as some legislative leaders have made clear, we still have a Legislature that isn’t always as respectful as it should be of the importance of judicial independence.
With the screening hearings over, the Toal-Pleicones race moves out of the public spotlight, to one-on-one conversations between the justices and legislators. Which is unsettling. For the mind reels at where even the most honest and well-intentioned justices might be tempted to go when they meet behind closed doors with legislators who have votes to provide them — and requests to make of them.