Judge J. Michelle Childs is being considered by President Biden for a seat on the U.S. Supreme Court.
Judge J. Michelle Childs is being considered by President Biden for a seat on the U.S. Supreme Court.
J. Michelle Childs, whose name in on President Biden's Supreme Court short list, has successfully navigated the conservative racial and political life of South Carolina to emerge at the top of the legal profession in the state.
Born in Detroit in 1966, she was 13 when her mother, a Michigan Bell telephone manager, moved the family to South Carolina. By then her mother and father had been divorced for some time. But within months of the move, the judge recalled in a 2018 speech, "I received a phone call that my father, a police officer, had died in Detroit from gunshot wounds. Of course, I was devastated."
Beyond that, little is publicly known about her father's death in 1980, except that the Associated Press reported at the time that that he "died of a self-inflicted gunshot wound to the chest." Although Rep. James Clyburn, who has been aggressively lobbying for Childs' nomination, has said her father died "in the line of duty," Ralph Childs is not on the Michigan state list of "fallen officers" in 1980.
A young life touched by violence
What is known, at least by inference, is that her father's death had a lasting impact on her. In a speech at an alternative middle school in Orangeburg, S.C., in 2018, Judge Childs took pains to point out that "gun violence has a devastating impact on American children and teenagers."
After reciting a litany of statistics showing 2,700 children and teens are shot and killed, and more than 14,000 are injured by gunshots each year, she said that the effects of gun violence "extend far beyond those struck by a bullet." Gun violence, she said, "shapes the lives of millions of children who witness it, know someone who was shot, or live in fear of the next shooting." She could have been speaking about herself.
If that was the case, Michelle Childs found a way to deal with her father's death, and her new home in Columbia, S.C., a place that initially she found hard to fathom. She was, by her own account, "an outsider" who found "many people with a mindset that you had to be from South Carolina and given permission to make any great achievements."
Undeterred, she would graduate as valedictorian and class president from her racially integrated high school, earning a scholarship to the University of South Florida where she graduated with honors. While in college, she also won the Miss Black Florida beauty pageant, leading to what she later told a South Carolina legislative committee was her first lawsuit. As she put it, "The pageant director reneged on prizes so I sued him." And she won.
After graduating, she returned to South Carolina and received scholarships to pursue legal and business graduate degrees at the University of South Carolina.
A seventh Catholic on the Supreme Court?
Judge Childs is Catholic, a fact that would be unremarkable but for the fact that if she is nominated and confirmed, she would be the seventh Catholic on the U.S. Supreme Court. The only non-Catholics on the court, once Justice Breyer formally retires, will be Justice Neil Gorsuch, who was raised Catholic but now lists his religion as Episcopalian, and Justice Elena Kagan, who is Jewish.
Now 55, Childs started her legal career at the overwhelmingly white and male law firm of Nexsen Pruet LLC, in Columbia, S.C. When she arrived, one of the few women in the firm was Vickie Eslinger, a plaintiffs lawyer who says that in those days firms were not pigeon-holed into representing just employers or employees, and the firm did both.
The distinction is important because some on the left in the Democratic party have weighed in against Childs. Larry Cohen, a former labor leader and head of Our Revolution, a group with ties to Vermont Sen. Bernie Sanders, told the Washington Post that "Childs has a record at an openly anti-union law firm."
But Eslinger sees the criticism as preposterous, noting that when you are a young lawyer you do the work you are assigned to, and at the time that Childs worked at the firm, Eslinger says, it did not do "union-busting work."
What's more, as former Gov. Jim Hodges notes, Childs has the endorsement of the South Carolina AFL-CIO.
The first black woman to make partner
Eslinger remembers the first time she worked with Childs, then fresh out of law school and some 20 years Eslinger's junior; after reviewing a memorandum that Childs had drafted, Eslinger asked her to refocus it.
"She looked crestfallen," Enslinger recalls. But the next morning when Enslinger arrived at the firm at 7:30 a.m., Childs was already there with an entirely new document for her boss to review. "That's when I figured out that nobody was going to outwork Michelle Childs," Enslinger says. Pretty soon, she adds, "everybody wanted Childs to work with them." And Childs would become the firm's first Black female partner.
"Nobody thought of her as a woman lawyer or a Black lawyer, just a really first-rate lawyer who would get the job done," says Eslinger.
The lawyers there weren't the only people who noticed. In 2002, Hodges, the last Democratic governor of the state, lured Childs away to become deputy director of the South Carolina Department of Labor, a subcabinet position, and following that she became a commissioner on the South Carolina Workers Compensation Commission, where she acted in a semi-judicial capacity hearing workman's compensation claims.
Election to the state trial court
In 2006 the state legislature elected her to the state trial court — quite a feat when you consider that the legislature was controlled by the GOP.
"She was savvy, smart and honest," Hodges explained in an interview with NPR. And, as others have pointed out, she met with any legislator who would agree to meet with her.
Childs served four years as a state trial court judge, where she would become the chief administrative judge for the criminal court and the designated judge to hear complex business matters in her county. She won special praise for clearing a backlog of criminal cases that had languished for as long as three years without going to trial.
Armand Derfner, a civil rights lawyer in South Carolina, notes that as early as her first year on the bench, Childs demonstrated both "great skill and courage." He points to a case that he was involved in as an example, a case involving a fatal accident at a worksite. Childs ruled that a drug test administered by the employer after the accident could not be used at a criminal trial because it was illegally administered and illegally turned over to the state.
The decision has no sweeping language, but as Derfner observes, most state trial judges do not write 16 page opinions — as she did in the case — teasing out complex issues involving the suppression of evidence.
In 2010, President Obama nominated Childs for a seat on the federal trial bench. The American Bar Association unanimously rated her "well qualified," and she was confirmed on a voice vote. She has served in the position for 11 years. In January Biden nominated her to the federal appeals court in Washington, D.C., but her confirmation hearing was postponed when it became clear she was under consideration for the U.S. Supreme Court.
A politically powerful champion
Childs's meteoric rise in the last year has been due in part to her champion, Congressman Clyburn, the third ranking Democrat in the U.S. House of Representatives, and the man widely credited with then-candidate Biden's unexpected win in the South Carolina Democratic primary in 2020, a victory that catapulted the faltering Biden campaign to victory.
It was during the primary that Biden, at Clyburn's urging, pledged that, if elected, he would name the first Black woman to the Supreme Court if there was a vacancy. Clyburn has been pushing hard for Childs ever since Justice Breyer announced that he would be retiring at the end of the current Supreme Court term.
Within hours of Breyer's retirement announcement, Clyburn told a group of South Carolina reporters that Judge Childs's degrees from public universities would better represent the country than other candidates who graduated from Ivy League colleges and law schools.
Are candidates from public universities necessarily better?
Republican Sen. Lindsey Graham of South Carolina immediately echoed those sentiments, saying that "it would be good for the court to have somebody who's not a Harvard or Yale grad." Indeed, all the current members of the court graduated from Harvard or Yale Law School, with the exception of Trump appointee Amy Coney Barrett, who graduated from Notre Dame Law School.
Privately, some Black women law professors have chafed at the idea that attending a top-rated law school could be a demerit for other women under consideration by Biden.
"Isn't it interesting how people are always trying to divide us," said one African American law professor, noting that when it's a male appointee, people praise their academic achievements, period.
Regardless of the elite versus state school skirmish, just having Republican Graham publicly seem to endorse Childs and promise that as many as 10 other Republicans might do so as well — that is the kind of thing that could be catnip for Biden.
Childs's record as a federal judge has been largely uncontroversial. Perhaps her highest-profile decision came in 2014 when she ruled that the state of South Carolina violated the U.S. Constitution when it refused to recognize the out-of- state marriage of a same-sex couple. The state, she wrote, had deprived the couple of their "constitutionally protected, fundamental liberty interest in the right to marry." The following year, the U.S. Supreme Court reached the same conclusion in a case from Ohio.
In 2020 her decision in a voting rights case did not fare as well. With the pandemic in full swing, and vaccines not yet in sight, Childs sided with the state Democratic party, barring the state from enforcing a witness requirement on absentee ballots for the June primary and the upcoming November election. The full Fourth Circuit Court of Appeals left her order in place. But when the Republican party appealed to the U.S. Supreme Court, the justices reinstated the witness requirement.
While Childs's legal opinions are unlikely to cause enormous controversy, she has been forthright in her advocacy for diversity on the bench, and elsewhere; she has also spoken about the difficulty of getting people, including judges, to recognize their "implicit biases."
Nor does she pull any punches when talking about the criminal justice system, citing the "disproportionate" rate of imprisonment for African Americans. In that 2018 speech in Orangeburg, S.C., she talked about the "growing gap of education and income inequality across the nation, crumbling schools in many cities and towns, and a school-to-prison pipeline that shuttles people from under-resourced schools into overcrowded jails." In bearing witness to all that, she said, "we are reminded of the justice that still eludes us."
Judge Childs is married to Dr. Floyd Angus, a gastroenterologist, and the couple has one daughter.