Race, cronyism, party: Hot diversity issues split SC lawmakers in contested judge race

A two-person race for a vacant state judge’s post in Richland County has opened fissures among South Carolina lawmakers along racial and party lines over the volatile issue of racial diversity.

The white candidate is James Smith, 56, a Democrat who served as a state representative from 1996 to 2018. Smith, who has experience with a wide array of legal work, took a leave of absence from the Legislature for front-line combat duty in Afghanistan. In 2018, he was the Democratic gubernatorial nominee, losing to Henry McMaster, 54% to 46%. He currently is with the Nelson Mullins law firm.

The Black candidate is Justin Williams, 39, who is not identified with either party. In his 12 years as a lawyer, he has done stints as an assistant prosecutor with the 5th Circuit Solicitor’s Office and worked with two law firms doing civil and criminal work. Since 2018, Williams has been a commissioner on the Public Service Commission, a quasi-judicial state regulatory agency that has jurisdiction over utility rates, energy, transportation and other matters.

Both Smith and Williams were found “qualified” with an “excellent” temperament by the Judicial Merit Selection Commission, the 10-member group that screens candidates for judge positions and approves or prohibits their candidacies in the Legislature. The commission is made up of six lawmakers and four citizens.

The state’s 170 lawmakers — 46 in the Senate and 124 in the House — will elect either Smith or Williams. The election will be on Wednesday, Feb. 7, in a joint session. It takes a simple majority to win.

Both Smith and Willliams declined comment for this story.

The lack of racial and gender diversity in the state’s high salaried judiciary is a political and social issue in South Carolina. The state has only four Black judges among 49 trial judge positions, two of which are vacant after the retirement of two Black judges last year. Judges make approximately $200,000 a year. They also have an opportunity, through the law clerks they hire each year, to create behind-the-scenes networks in the state’s legal community.

“What has been so disappointing is the failure to capitalize on the opportunity to add diversity to the courts on every level,” said state Rep. Gilda Cobb-Hunter, D-Orangeburg, a Black House member with 31 years in office. She noted several judgeships vacated recently by Black judges have been filled by white lawyers.

“For me, this is not about James Smith. It’s about the lack of commitment to diversity. It’s really frustrating to hear people give lip service to the idea of diversity on the bench, and then not follow through with it,” Cobb-Hunter said, adding her critique applies to both Republicans and Democrats. “None of these candidates who go through the screening process are without merit. They have to have merit, and then some, or they wouldn’t make it out of screening.”

State Sen. Mia McLeod, a Richland County independent and a Black 14-year lawmaker, said it is “disheartening” that so many lawmakers who say they support diversity on the bench are supporting Smith. “We have two qualified candidates. I like them both, have worked with James in the House, but this is a judicial seat, and Justin (Williams) is more than qualified. I just think when we have the ability to compare the two, diversity should always win.”

But to Rep. Todd Rutherford, D-Richland, a Black member of the Judicial Merit Selection Commission and longtime House minority leader, the qualifications and varied experiences of Smith far outweigh Williams’.

“James has forgotten more about the law and process than most people will ever know,” said Rutherford, who sat next to Smith during Smith’s years in the Legislature and praises his work ethic. “There’s not an issue that would come up where he would tell you he didn’t know anything about it.”

Smith has been a leader on numerous causes, including playing a crucial role in the 2015 fiercely-fought debate to remove the Confederate flag from the State House grounds after a white supremacist killed nine Black parishioners at a Charleston church, said Rutherford, who plans to vote for Smith.

And Smith’s service in Afghanistan — choosing to go on leave from the Legislature, enlist in the U.S. Army after the 9/11 terrorist attacks and fighting in a combat position instead of getting a cushy job as a military lawyer — was heroic, Rutherford said. “He went as a real soldier. He had small children, but he went anyway because it meant that much to him.”

Rep. Leon Howard, D-Richland, the Black chair of the Richland County delegation, said he and nine other members of the delegation have signed letters supporting Smith. They include Blacks, whites, men and women, Republicans as well as Democrats, he said.

“It’s not that I’m against diversity,” said Howard, who says Smith’s qualifications far outweigh those of Williams. “I’m for diversity. I just don’t think it is the predominant factor.”

Smith has a track record of favoring diversity, including helping get Don Beatty, the outgoing Black Supreme Court chief justice, attain his high judicial positions, Howard said.

The seat that Smith and Williams are running for was vacated last year by Judge DeAndrea Benjamin, a Black, who was nominated by President Joe Biden and approved by the U.S. Senate for a seat on the U.S. Fourth Circuit Court of Appeals.

Here’s a comparison of some of Smith’s and Williams’ backgrounds, based on Judicial Merit Selection Commission and other records:

▪ Smith has the highest rating — AV — for ethical and professional standards by peers, according to the Martindale Hubbel legal rating guide. Williams is not rated.

▪ Smith has taught numerous legal-related courses, including continuing legal education and veterans’ law courses. Williams has not taught classes.

▪ Both have military backgrounds. Williams has served since 2015 as a lawyer in the U.S. Army Reserve. Smith has served in the S.C. National Guard since 1996. Both have served overseas: Smith in combat in Afghanistan; Williams in judicial and legal advisor roles in South Korea and Iraq. Both hold the rank of Major.

▪ Smith graduated from the University of South Carolina law school in 1995; Williams, in 2010.

▪ Smith listed numerous awards for legislative and legal accomplishments. He serves on the Patriots Point Development Board. In college at USC and at its law school, Williams held a variety of student leadership positions and he is a current member of various civic and church organizations.

Although a Democrat, Smith has ties to and support from various Republicans, including former House Speaker and former Ambassador David Wilkins, a Greenville attorney. Lawyers supporting Smith include John Nichols, former chief of the state lawyer disciplinary panel, and John T. Lay of Columbia, who was appointed with another lawyer to oversee and distribute disbarred lawyer and convicted killer Alex Murdaugh’s assets.

Willkins wrote in a letter to the Judicial Merit Selection Commission that Smith is “a highly respected attorney whose career contributions in the private sector, as a public servant in the state legislature, a decorated war hero and a resolute family man have made a profound impact on the citizens of South Carolina.”

Republican State Sen. Tom Davis of Beaufort says he’s voting for Smith, even though Smith is a Democrat. Davis said he first met Smith when Davis was chief of staff to Republican Gov. Mark Sanford and found that Smith had a willingness to be objective, to listen to arguments, to be fair, to act with integrity and take positions based on facts.. “He checks all those boxes.”

Both Smith and Williams were asked by the Judicial Merit Selection Commission to list their five most significant cases.

Smith’s cases included winning a high-profile verdict in a defamation case involving the female commandant of the U.S. Army Drill Sergeant School at Fort Jackson, representing Toyota in a complex crashworthiness case and representing the S.C. Department of Revenue against Richland County in a dispute concerning DOR’s authority over how the county used proceeds from its transportation penny sales tax.

Williams’ cases include serving as second chair on a complex murder case, helping prosecute a serial burglar, being a plaintiff’s lawyer in a complex medical malpractice case along with the late Stanley Myers, getting a prison sentence in a dog-fighting case and helping a plaintiff get a settlement in an employment discrimination case.

A Judicial Merit Selection Commission comment on Smith was that he has “a calm, respectful demeanor” and a “reputation for a great intellect and a strong work ethic.”

The commission’s comment for Williams was that he “has an outstanding reputation, particularly as it relates to his professionalism.” Williams’ work on the PSC could “be useful should he be elected to the Circuit Court bench,” the screening commission said.

State Rep. Micah Caskey, R-Lexington, a member of the Joint Merit Selection Commission, said both Smith and Williams are qualified. Caskey has not decided who to vote for.

Racial diversity is “certainly in the aggregate” but “the challenge is, in the individual cases, should that play a factor? For me, it is not something that is at the forefront of my list as a decision-making critieria,” Caskey said.

Columbia attorney I.S. Leevy Johnson, former president of the S.C. Bar and one of the first Blacks to serve in the Legislature after Reconstruction, favors diversity on the bench.

Leevy Johnson said it is “horrific” that the few Black jurists on the bench are being replaced by whites. He referred to the retirements of Beatty, the Supreme Court chief justice, and former Circuit Court Judge Casey Manning. Beatty will be replaced by Associate Justice John Kittredge, a white man, and Manning was replaced by Daniel Coble, who is white. State judges must retire at age 72.

Another judge who retired in December because of his age, Clifton Newman, who presided over the Murdaugh murder case, was replaced by Patrick Fant III, a white Greenville lawyer.

“In the last vacancies that have occurred, the Black judges have all been replaced by white candidates,” Leevy Johnson said, saying the most serious deficiency is at the Supreme Court.

Confidence in South Carolina’s judicial system among African Americans is declining because the judgeships do not mirror the percentage of Blacks in the population, Leevy Johnson said.

Rutherford said this contest boils down to the two people running against each other. “There’s no way you could hold Justin’s resume up to James’ and say that Justin deserves that seat just because he’s Black.”