Biden breaks with Clyburn on Supreme Court pick, taps Jackson over SC Judge Michelle Childs
Congressman Jim Clyburn got his wish that President Joe Biden would nominate a Black woman to the U.S. Supreme Court.
Biden’s pick was not, however, Clyburn’s first choice: U.S. District Court Judge J. Michelle Childs of South Carolina.
Clyburn’s high-profile, public push for Childs to replace retiring Justice Stephen Breyer did not persuade the Democratic president, who plans to follow a traditional route and seek to put a former Breyer law clerk who is now a judge on the influential D.C. Circuit Court of Appeals, Ketanji Brown Jackson, 51, on the Supreme Court.
Biden announced Jackson’s nomination Friday afternoon at the White House. Jackson also delivered remarks.
“This is a glass ceiling that took far too long to shatter, and I commend President Biden for taking a sledgehammer to it,” Clyburn said Friday in a statement. “I congratulate Judge Jackson and offer my full support during the confirmation process and beyond.“
The announcement coincides with the two-year anniversary of Biden’s promise at a Charleston presidential primary debate to nominate the first Black woman to the high court. He made the promise ahead of South Carolina’s Democratic presidential primary. Clyburn endorsed Biden’s campaign the following day.
“I want to thank the president not just for keeping that promise but doing it in a way that makes all of us proud,” Clyburn told reporters Friday.
Clyburn, the third-ranking Democrat in the House, led a vigorous public campaign for Biden to appoint Childs, 55, to the high court after Breyer’s retirement. He was joined by South Carolina Republican U.S. Sen. Lindsey Graham, who said Childs would get overwhelming bipartisan support in the Senate, and blasted Biden’s choice Friday morning.
Clyburn and Graham centered their advocacy on Childs’ educational background, arguing that Biden should further diversify the court by appointing a judge who attended public colleges.
Childs attended the University of South Florida and received her law degree from the University of South Carolina. She later earned a master’s degree from Duke University, a private college in North Carolina. Only one current Supreme Court justice, Trump-nominated Amy Coney Barrett, did not attend an Ivy League school.
Clyburn argued that Childs’ appointment would have shown children who attend public schools that they too can “attain the greatness of this country.”
“Every child raised in a single family, single-parent household, ought to feel that that should not be a disqualifier,” Clyburn said in an interview with McClatchy prior to Biden’s nomination. “Every African American woman should feel that being an African American woman is not a disqualifier for the Supreme Court and all that can be attained with this appointment.”
On Friday, Clyburn said although Childs will not be the finalist, her inclusion “continues her record of remarkable contributions to making this country’s greatest accessible and affordable for all.”
Graham, meanwhile, criticized Biden’s nominee, arguing attacks “by the left” worked. Graham previously voted to support Jackson when she was nominated to the D.C. Circuit.
“I expect a respectful but interesting hearing in the Senate Judiciary Committee,” he said. “The Harvard-Yale train to the Supreme Court continues to run unabated.”
South Carolina Republican Sen. Tim Scott said he was disappointed.
“I look forward to meeting with Judge Jackson and thoroughly vetting her record, as I have done for all previous nominees to the Supreme Court during my time in the Senate,” Scott said. “As a fellow South Carolinian and the product of some of America’s finest public schools, I believe Judge Michelle Childs would have been an excellent nominee to our nation’s highest court.”
Aimee Allison, president and founder of Oakland, California-based She the People, a political network of women of color, called Graham’s criticism “strange.” Clyburn told reporters Friday he does not see Jackson as “being radical at all.”
“It’s not a valid criticism. To have someone with lived experience to bring that to the court is wonderful,” Allison said, adding as for the Ivy League issue, “they didn’t have trouble with the last two nominees.”
Some progressive groups and union leaders publicly encouraged Biden not to nominate Childs, citing her work two decades ago on employment and labor disputes as an attorney at the South Carolina law firm Nexsen Pruet. Childs was the firm’s Black female partner. A spokesman for the firm said she represented employees and employers while at the firm.
Supporters of Childs noted that she later served on the Workers’ Compensation Commission, prior to becoming a state circuit court judge in 2006. Childs has since 2010 been a federal district court judge. Biden announced her appointment in December to the D.C. Circuit Court of Appeals but put the nomination on hold as he vetted replacements for Breyer.
Child’s appointment to the Supreme Court would have been a significant victory for Clyburn, who prodded Biden to commit during his presidential campaign to appointing a Black woman to the court. Clyburn has said that Biden’s public pledge to do so influenced his endorsement in the South Carolina primary.
Childs is still in line to get a prominent judicial promotion.
Clyburn told reporters Friday that he spoke with Biden Friday morning, and Biden told him that though Childs was not the nominee that he was moving forward with her for the United States Court of Appeals for the District of Columbia.
Biden nominated Childs in December to fill the pending vacancy on the prestigious D.C. Circuit. He put Childs’ nomination on hold as he considered her for the high court vacancy.
She “did everything she could. She gave it a run in a dignified way, and people should be proud of the fact she was one of the top three seriously considered people” for Supreme Court, said Carl Tobias, a professor at the University of Richmond School of Law who specializes in federal courts.
The D.C. Circuit, widely considered the nation’s second-most influential court, has not only been a stepping stone for many Supreme Court justices, but it handles many of the same high-profile constitutional issues that make it to the nation’s highest court, Tobias said.
“Its docket looks much more of what the Supreme Court has a steady diet of,” Tobias said. “It gets hard cases and delicate cases about how the government works.”
Childs: ‘Fair and thoughtful’
Since 2006, when she won a South Carolina state judge’s seat, and since 2010, when she became a U.S. District Court federal judge on then-President Obama’s nomination, Childs has presided over a wide variety of criminal and federal cases.
They included overseeing a four-year FBI investigation of white collar crimes by dozens of members of South Carolina’s Irish Travelers subculture, and a 2018 civil case where she blocked a rate hike request by SCANA, a now-defunct electric utility, that would have raised monthly bills for 700,000 ratepayers.
Lawyers and judges who know her describe Childs as smart, hard-working and thorough. She is said to be tough but fair, personable but able to control a courtroom.
A measure of how she is regarded by colleagues are two positions she has or currently holds in national bar groups: current president of the Federal Judges Association, whose 1,100 members represent a majority of the nation’s federal judges, and immediate past chair of the American Bar Association’s Judicial Division, an interest group for judges, lawyers and others interested in the courts and the justice system.
“She is one of the best judges I ever supervised,” said former S.C. Supreme Court Chief Justice Jean Toal, who during Childs’ four years as a state court trial judge would assign her to handle complex business litigation that needed a judge with a good mind and focus.
“She’s so thorough,” Toal said. “She brings to the job high intellectual abilities and a very deep work ethic. When she gets cases, she reads everything there is to be read, she does her own research in addition to the research provided by the parties on legal issues to come before, and she handles things with dispatch.”
Columbia attorney Jim May first encountered Childs when he was a Richland County public defender and then as a federal prosecutor.
“She is always really good, being really empathetic to the victim, and at the same time, being empathetic to the defendant, understanding where they and their family are coming from,” said May, who estimates he has appeared before her hundreds of times, mostly for guilty pleas.
“Her decisions impact each person’s life who appears before her,” May continued. “I don’t remember anybody ever walking out of the courtroom saying she wasn’t fair or thoughtful. She does a phenomenal job of evaluating each case on the merits to come up with the right answer.”
Attorneys said she does not have “black robe disease,” also commonly called “robitis,” legal slang for an arrogant judge whose power has gone to their head.
“With some judges, you have to kiss their ring — not her,” said longtime Columbia lawyer Jack Duncan, who has appeared before Childs in federal court, state court and workers’ compensation cases.
In Childs’ approximately 11 years on the federal bench, from 2010 to present, two of her decisions in high-profile politically charged cases in non-jury trials captured widespread attention.
In a major 2020 election law case case, Childs heard arguments that pitted alleged voting fraud concerns by Republicans against COVID-19 concerns of voters.
After numerous hearings and thousands of pages of filings in which Republicans produced scant evidence of voter fraud, Childs wrote a 71-page opinion heavy with medical evidence that protected voters from being exposed to potential COVID-19 transmission by prohibiting the S.C. Election Commission from enforcing a requirement that a person who votes absentee must have someone witness their signature.
The U.S. Supreme Court ruled against her, and Republican officials blasted her ruling as “judicial activism.”
In 2014, as a national political and legal debate raged about whether gay marriages were legal, Childs ruled a state law outlawing gay marriage was unconstitutional when she upheld a Lexington County same-sex couple’s bid to get legal recognition from the state of South Carolina for their out-of-state marriage.
The couple, Highway Patrol trooper Katherine Bradacs and Tracie Goodwin, had been legally married in the District of Columbia in 2012, had three children and their lawsuit alleged their children were adversely affected by South Carolina not acknowledging they are legally married.
Childs’ ruling was upheld, and she ordered State Attorney General Alan Wilson to pay the couples’ $80,000 in legal bills.
In criminal cases, Childs can be firm as well as show mercy.
In 2018, while pondering whether to sentence a sickly Irish Traveler grandmother to prison for serious white collar crimes, the woman’s lawyer, Peter McCoy of Charleston, pleaded with Childs to let her serve a home confinement sentence.
Childs refused. But in another similar case, Childs allowed a defendant who was the sole caregiver for children to serve her sentence at home.
Childs also is the presiding judge in a pioneering South Carolina “bridge court” program that offers first-time federal offenders with substance abuse problems a chance to get help. Participants who successfully complete the program are eligible for a reduced sentence or probation.
In 2020, when the University of South Carolina School of Law was looking for a new dean, Childs was one of several graduates who interviewed Columbia lawyer William Hubbard, who eventually got the job.
Since the law school each year graduates about 200, and only about 50 of that number are highly sought after for top legal jobs, what were Hubbard’s plans for the remaining 150 graduates to try to get them good jobs, Childs asked.
Hubbard replied that the overall quality of USC law school grads was “excellent” and he would depend on people like Childs “to get the word out” that not only the students with the top grades were worth going after.
Rita McKinney, a retired Greenville attorney, was director of the S.C. Department of Labor, Licensing and Regulation and recruited Childs from private practice to be deputy director of the agency’s Division of Labor. In that position, Childs supervised about 100 people in various areas including workplace safety and health, child labor laws and migrant labor information, McKinney said.
“She approached every workplace incident with an openness to all viewpoints and no notion of end result,” McKinney said. “Her agenda was to do the right thing based on the law and the facts. She was very, very thorough.”
The State’s senior politics editor Maayan Schechter, and reporters Joseph Bustos and Caitlin Byrd, and McClatchyDC chief congressional correspondent David Lightman contributed to this article.
This story was originally published February 25, 2022 at 9:35 AM with the headline "Biden breaks with Clyburn on Supreme Court pick, taps Jackson over SC Judge Michelle Childs."
