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State Court Experience Would Make Childs a High Court Rarity (3)

Jan. 28, 2022, 5:27 PMUpdated: Jan. 29, 2022, 2:53 AM

U.S. District Judge J. Michelle Childs would bring extensive experience as a state and federal trial judge if nominated as the Supreme Court’s first Black woman.

Childs, 55, who the White House said late Friday is among multiple people under consideration for the seat being vacated by Stephen Breyer, also has the public endorsement of Rep. James Clyburn (D-S.C.), who is the third-ranking Democrat in the U.S. House. He was an influential figure in Joe Biden’s ascent to the presidency and told Bloomberg Law that he’s spoken with the state’s two Republican senators about Childs.

What Childs lacks in her resume is experience as a federal appellate judge. Biden sought to fill that gap by nominating her to the powerful U.S. Court of Appeals for the District of Columbia Circuit, a common springboard for Supreme Court nominations.

But the White House is “not going to move her nomination” forward while Biden considers her for the high court, Andrew Bates, a presidential spokesman, said in a statement. She had been scheduled to appear before the Senate Judiciary Committee to answer questions on her nomination on Feb. 1. Those plans were delayed earlier in the day.

Biden said he intends to nominate the first Black woman justice by the end of February. Two others viewed as potential nominees include another former federal trial court judge Biden appointed to the D.C. Circuit, Ketanji Brown Jackson, as well as California Supreme Court Justice Leondra Kruger.

Childs, a graduate of the University of South Carolina’s law school, would stand out on the high court as a rare justice without Ivy League credentials. Her experience as a state court judge would also make her unique. The last justice with previous service on a state court was David Souter, who was nominated in 1990 by Republican George H.W. Bush and retired in 2009.

Childs served four years as a state trial court judge in South Carolina and has been a judge in the U.S. District Court for the District of South Carolina since 2010, when she was appointed by Barack Obama.

At her confirmation hearing for that seat, Sen. Lindsey Graham (R-S.C.) introduced her by saying, “every lawyer that I know of who’s appeared before her, regardless of their political persuasion or philosophy, has nothing but great things to say about Judge Childs.”

She was confirmed by voice vote.

Clyburn said in an interview with Bloomberg Law that Graham also “was speaking very highly of her” in a conversation between the two lawmakers on Friday. Graham, a member of the Judiciary Committee and its former chair during the Trump era, has supported most of Biden’s judicial nominees. He could be a critical vote for the eventual pick. If they stick together, Democrats ultimately don’t need GOP support to push through a nominee in the bitterly divided chamber.

A spokesman for Graham did not respond to a request for comment on Clyburn’s remarks. Clyburn said he’s also spoken to Tim Scott, South Carolina’s other Republican senator, “since this discussion started several weeks ago.”

Early Years

Childs was born in Detroit and eventually moved to South Carolina with her family. Her father, who was a police officer, died when she was a teen, she said in a December 2020 virtual panel for the South Carolina Bar.

As the child of a single parent, Childs said it became an important issue for her that she and her younger sister go to college.

During the same panel, Childs said she became interested in the law after participating in a mock trial program. Before that, she wanted to be a psychologist. “It just influenced my ability to feel like I could be an advocate for a position,” Childs said.

Childs spent much of her early career in Columbia at the law firm Nexsen Pruet Jacobs & Pollard where she focused on labor and employment law. In an interview with her law school alma mater, Childs said she was “the first black female partner in a major law firm in the state.”

She went on to serve as an official in the South Carolina labor department and as a commissioner on the state workers’ compensation board before becoming a state judge in 2006.

During her time as a state trial judge, Childs served as an acting justice on the South Carolina Supreme Court “on several occasions,” she said in her answers to the Senate Judiciary Committee questionnaire.

Her noteworthy decisions as a federal district judge include a 2014 case in which she ruled in favor of a lesbian couple who sued to have South Carolina recognize their out-of-state marriage.

Childs is currently president-elect of the Federal Judges Association, a voluntary organization for U.S. judges.

Important Backing

In his support for Childs, Clyburn touts her blue collar roots, public education, and varied professional experience centered in South Carolina.

“There’s nobody that I think is under discussion, or even sitting on the court today, that’s got that kind of background. That raw and deep background,” Clyburn said of her focus building her career in the South.

Her background, he said, would break down invisible barriers to entry at the high court.

Clyburn, the House majority whip, advocated for a Childs’ elevation in the judiciary before Biden took office. Clyburn sent a letter to the transition team in January 2021 encouraging Biden to nominate her to the D.C. Circuit.

Clyburn also pressed Biden to commit to naming a Black woman to the Supreme Court on the campaign trial. When asked if he had Childs in mind back then, Clyburn said: “Yes, absolutely.”

—With Jennifer Epstein of Bloomberg

(Updates with White House statement on Childs. )

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com

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