Michelle Childs Would Be Unconventional Supreme Court Pick

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The judge is seen by some as a long shot for the Supreme Court, but supporters say her bipartisan backing and the appeal of her humble ascent should not be overlooked.

J. Michelle Childs has served on the federal bench since 2010.
Credit...David Walter Banks for The New York Times

Erica L. GreenRick Rojas

Feb. 9, 2022, 4:49 p.m. ET

WASHINGTON — It was just before Christmas, and Jean H. Toal, then the chief justice of the South Carolina Supreme Court, was in a bind. She needed an emergency order drawn up, but the courthouse in Columbia, the state capital, was empty. She was relieved to reach someone who assured her, “Chief, I got it.”

It was J. Michelle Childs, then a state circuit court judge who had made a name for herself as one of the most adept on the bench.

“Within an hour she came back to me, and she had a complete order with footnotes and everything,” Judge Toal, now retired, recalled of the day more than a dozen years ago. “Days later, she delivered her child. So, she was über-pregnant and it was right at Christmas time, but she had her work ethic on full steam, as she always did.”

The memory sums up the reputation of Judge Childs, now a Federal District Court judge in South Carolina, who rose through the ranks of state schools, local government and the South Carolina legal system to the short list of potential Supreme Court nominees for President Biden, who has pledged to nominate a Black woman to replace Justice Stephen G. Breyer.

The 55-year-old judge, who has served on the federal bench since 2010, is seen in elite circles as a long shot compared with other Black female candidates whose high-profile connections and Ivy League pedigrees fit the mold of a traditional Supreme Court appointee. But Judge Childs’s powerful champions in Congress — particularly Representative James E. Clyburn, the South Carolina Democrat who is widely credited with saving Mr. Biden’s presidential candidacy — and the broad appeal of her humble ascent could make her a formidable contender.

“If you make assumptions about South Carolina, and a certain type of a judge and a non-Ivy League education, you won’t know what you’re missing in Michelle Childs — she is brilliant,” said Judge Toal, who would often tap Judge Childs to serve in an acting capacity on the state’s high court.

People who have known Judge Childs for decades, personally and professionally, struggle to assign her a political ideology. Many describe a pragmatic approach to her rulings, which they say she issues after intense preparation and deliberation.

“I could have as easily seen Judge Childs be nominated by a Republican than as a Democrat,” said William C. Hubbard, the dean of the University of South Carolina School of Law, who first met Judge Childs when she was a law student there. “I think that is a reflection of how people view her, not as an ideologue but a fair judge.”

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On Wednesday, Jen Psaki, the White House press secretary, said Mr. Biden was seeking advice from a range of elected and nonelected officials, and approaching the nomination process in “a bipartisan manner”

Should Judge Childs emerge as the nominee to replace Justice Breyer, who announced last month that he planned to retire, she would most likely draw at least some bipartisan support. After President Barack Obama nominated her to her current post on the U.S. District Court in South Carolina in 2009, the Senate confirmed her through a voice vote.

Senator Lindsey Graham, Republican of South Carolina, who supported Judge Childs in that nomination and has heaped praise on her since her name emerged as a candidate for the Supreme Court, said he had told the White House that she could get the support of at least 10 Republicans in the evenly divided Senate. “I am confident that if Michelle Childs was chosen and did well at the hearings, which I think she would, that 60 votes-plus would be in play,” Mr. Graham said.

Her most high-profile rulings from the federal bench show her leanings on sensitive topics of national resonance and consequence.

In 2014, she ruled in favor of two women who sued the state to have their marriage, which had been performed in Washington, D.C., recognized in South Carolina. In the case, Bradacs v. Haley, Judge Childs found that the couple had “articulated a constitutionally protected, fundamental liberty interest in the right to marry,” and that the state’s failure to recognize the marriage was unconstitutional. The ruling, while narrow, was one of a pair that effectively gutted the state’s same-sex marriage ban.

In 2020, Judge Childs struck down a South Carolina rule that would have required a witness to sign absentee ballots, potentially making it harder to vote, particularly during the coronavirus pandemic. In granting a preliminary injunction, which was later largely struck down by the U.S. Supreme Court, Judge Childs rejected an argument from state officials that the witnesses could aid in potential investigations of voter fraud. The argument, she wrote, “is undercut by an utter dearth of absentee fraud.”

In December, Mr. Biden announced he would nominate Judge Childs to the federal appeals court for the District of Columbia Circuit, a frequent staging ground for potential Supreme Court justices. Her confirmation hearing was postponed after the White House confirmed that Judge Childs was under consideration for the Supreme Court.

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Credit...Sarahbeth Maney/The New York Times

In a joint CNN interview on Sunday, two senators known as swing votes — Lisa Murkowski, Republican of Alaska, and Joe Manchin III, Democrat of West Virginia — endorsed the idea of Mr. Biden nominating a judge who could be confirmed with bipartisan support.

Mr. Manchin said he counseled Mr. Biden to “look for the person who has the upbringing” to be a “well-rounded candidate.” He added that he believed Judge Childs “has that grass-roots support.”

Senator Tim Scott, Republican of South Carolina, said in an interview he had not spoken to the White House about Judge Childs, but he called her a “calming force” in South Carolina’s legal community. “She’s thorough, she’s consistent and she’s well regarded by legal elite minds in the state,” he added.

Many observers say that Judge Childs’s background, which would bring more racial and geographic diversity to the court, could tip the scale in her favor over other highly qualified candidates.

She received a bachelor’s degree in management at the University of South Florida and a master’s and law degree at the University of South Carolina; both are public institutions. She also earned a second master’s degree, in judicial studies, from Duke University in 2016. She attended college and law school on scholarships.

“There is a lot to be said to have a pedigree from Harvard and Yale, but there’s something else to be said to have the experiences of real folk who come before your court,” said Bakari Sellers, a political commentator who served in the South Carolina House of Representatives and practices law in the state.

Over her 16 years as a judge, her dockets have included a broad range of cases, including one of the largest armored car heists in the nation’s history, drug crimes, domestic disputes and matters concerning utility regulations and securities law. Her experience as a trial judge is also cited by her supporters as an asset. A small number of appeals have been filed against her rulings on the federal bench, and the vast majority of those have been unsuccessful, according to an analysis by the Alliance for Justice; less than 1 percent of the nearly 5,000 of decisions she’s rendered have been vacated or dismissed.

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In Columbia, Judge Childs is described as a down-to-earth community leader who could be seen sitting on the bench, at a board meeting for a civic organization and in the bleachers of a basketball game at her alma mater, all in the same day. Friends recall how she is the first on the dance floor at weddings, helps organize the best baby showers and has been known to whip out her computer to start editing a court order during a beach vacation.

She is married to a gastroenterologist, Dr. Floyd Angus, and they have a 13-year-old daughter, Julianna, who attends an Episcopal school.

Judge Childs was born in Detroit and moved to Columbia as a teenager. Her mother who worked for telephone companies, told the Greenville News in 2014 that rising crime in Detroit and the death of Judge Childs’s father when she was 14 prompted the move. Her father, a Detroit police officer, died at 32.

The valedictorian of her class at Columbia High School, Judge Childs has said that her experiences with moot court in high school and college inspired her to pursue a law career.

In a Q. and A. with the University of South Carolina’s law school in 2020, Judge Childs said she chose to get her degree there because she wanted to practice law in the state.

“It is a very reputable and competitive school,” she said, “so I believed that it would provide me a solid legal foundation, opportunities to connect with the local bar, and the ability to enhance my career options.”

Kelly A. Seabrook, one of Judge Childs’s best friends and a lawyer in South Carolina, said her friend’s ambition — she was “involved in everything” — was clear from the first year of law school. They met as tutors, and their friendship blossomed into one that she compared with that of Oprah Winfrey and Gayle King.

“Just being a witness to all she has achieved makes us want to be better lawyers,” Ms. Seabrook said. “Just seeing her compassion and her kindness to everyone who crosses her path makes us want to be better people.”

Judge Childs was hired out of law school as a law clerk at Nexsen Pruet, a prestigious, predominantly white law firm in Columbia that specializes in labor law and represents employers.

Susan P. McWilliams, a lawyer there who helped hire her, recalled that there was considerable competition among law firms trying to recruit the new graduate. “I can tell you, no one outworks Judge Childs — that’s true today,” Ms. McWilliams said.

As an associate at Nexsen Pruet in the 1990s, she defended companies accused of racial discrimination and sexual harassment in the workplace. The American Prospect, a liberal magazine, found that Judge Childs participated in about two dozen such cases. In one of those cases, Harris v. L&L Wings, two women made accusations of chronic sexual assault.

Some union leaders and progressive groups have started raising concerns about Judge Childs’s work defending employers against such claims.

David Borer, the general counsel of the American Federation of Government Employees, which has not yet taken an official position on potential nominees to succeed Justice Breyer, said a background defending corporations was “disqualifying” for any candidate.

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“There’s a whole raft of those in the federal judiciary,” he said. “We need somebody, somewhere, to speak up on behalf of workers.”

In a statement, Andrew Bates, a White House spokesman, defended Judge Childs’s record, noting that when she led South Carolina’s Workers’ Compensation Commission, “her tenure was defined by fighting for injured workers.”

Judge Childs’s supporters and former colleagues noted that at Nexsen Pruet, she also represented plaintiffs in discrimination cases against their employers, and went above and beyond to advocate on behalf of vulnerable clients.

As an associate, she took on a pro bono case of an immigrant woman whom the court would not allow to see her children without supervision after her marriage broke up. Over a holiday weekend, when child welfare officials refused to send someone to supervise, Judge Childs took on the duty herself.

Eight years into her time there, in 2000, Judge Childs became the first Black woman to be a partner at a major South Carolina law firm.

That year, Gov. Jim Hodges of South Carolina, a Democrat, was looking for someone to help run the state’s labor department; Judge Childs’s name came up repeatedly, he recalled. She was hired to be the department’s deputy director and later ran the state’s Workers’ Compensation Commission.

“I found her an extraordinarily capable person who knew how to treat people, which I thought was really important,” Mr. Hodges said.

After her years with the state, she was elected to her first judgeship, on South Carolina’s circuit court bench, by the state’s General Assembly in 2006. She was re-elected in 2009.

“Michelle had opposition,” recalled State Senator Gerald Malloy, a Democrat, noting that it was not on her merits, but because some lawmakers favored other candidates. “She was tireless, and probably talked to each and every individual she could get an audience with.”

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Credit...David Walter Banks for The New York Times

In written answers to questions that U.S. senators posed when she was nominated to be a district court judge, Judge Childs said she believed that “empathy should play no role in a judge’s application of the law to the facts of a case.”

But many who have interacted with Judge Childs believe that in her case, it does play a role in how she runs her courtroom.

Kiosha H. Dickey, who served as a clerk for Judge Childs while she was on the state circuit court, recalled how the judge made it a point to reach out to people who might not understand the intricacies of the legal system.

Her office received hundreds of letters from prison inmates, complaining about issues as seemingly mundane as not having pencils. “She made sure that we responded to every single one of those letters,” Ms. Dickey, who now practices law in South Carolina, said.

She also recalled a case in which a man leapt over the courtroom’s railing and had to be restrained after Judge Childs sentenced his brother to prison for armed robbery. Instead of holding him in contempt, she had a one-on-one conversation with him, fitting her pattern of trying to relate with those who pass through her courtroom “on a human level,” Ms. Dickey said.

In an interview with Law360 in 2014, Judge Childs explained her approach. “In many ways, I’ve looked at my job as trying to bring some truth to that old joke: I’m from the government, and I’m here to help,” she said.

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Judge Childs was the kind of jurist whom Mr. Clyburn, the House majority whip, had in mind as he advised Mr. Biden in 2020 that promising to appoint a Black woman to the Supreme Court would be a game-changer in his campaign, which was flailing as he headed into the South Carolina primary.

In an interview, Mr. Clyburn said his support for Judge Childs’s nominations to the federal bench had been based in part on the admiration she had earned from other Black women he respected — including the congressman’s three daughters, two of whom are her sorority sisters in Delta Sigma Theta, a historically Black sorority.

Mr. Clyburn said he was willing to support other Supreme Court nominees, but he noted that her background would “help further what Joe Biden said throughout the campaign,” referring to Mr. Biden’s boasts about his nonelite credentials.

“This narrative that has developed around the leaders in this country, it could be one of the problems that we find ourselves in,” Mr. Clyburn added. “We’re so disconnected from the public all the time.”

Luke Broadwater, Emily Cochrane, Carl Hulse, Adam Liptak and Jonathan Martin contributed reporting. Sheelagh McNeill contributed research.

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