South Carolina judge is at the center of a political whirlwind around Biden’s Supreme Court decision
Politics is never far removed from the selection of any Supreme Court justice, but the political winds are blowing with unusual ferocity around J. Michelle Childs, a federal judge from South Carolina who is among those on a short list to fill President Joe Biden’s first court vacancy.
As the White House accelerates its extensive vetting of about a dozen potential nominees, lawmakers and outside groups have spent considerable time focusing on Childs after she emerged as the preferred choice of Democratic Rep. James Clyburn of South Carolina, one of the President’s top allies. That endorsement, which Clyburn has loudly been making for more than a year as he has touted Childs as a rising South Carolina star, has thrust the judge to the middle of a high-profile political vortex, even as other contenders for the vacancy are receiving far less public attention.
Since her name came up as being on Biden’s short list, Republican Sen. Lindsey Graham hailed Childs as a brilliant choice, saying, “It’s fair to say I think Michelle Childs has a really good chance of getting Republican votes.” Another Republican from South Carolina, Sen. Tim Scott, repeated that sentiment: “I think she has a strong record and would be a strong candidate.” And Democratic Sen. Joe Manchin of West Virginia echoed the praise, calling Childs “a tremendous, tremendous candidate.”
Those accolades have been, at the same time, accompanied by criticism from progressive activists and union leaders who suggest Childs’ legal record is not sufficiently supportive of worker rights.
The attention on Childs comes in the critical opening stages of a process structured by Biden’s top advisers to be equal parts methodical and rigorous, building to the selection of the first Black woman for the nation’s highest court.
But with the exact dynamics of the process closely held by the President’s most senior aides, it remains an open question whether the compliments — or the condemnations — play any role in influencing Biden on his choice to replace Justice Stephen Breyer, who is stepping down. Biden has been poring over biographies provided to him by the White House counsel’s office and isn’t expected to make a final decision until the end of the month.
Clyburn began raising Childs as a potential nominee with administration officials as far back as a year ago, and suggested Biden nominate her to the US Court of Appeals for the District of Columbia Circuit. That court, at which her nomination is pending, is viewed as a training ground for the Supreme Court.
“We’ve talked about this for about two years now, and the President knows very well what I feel about Michelle. They are considering her along with at least six other African American women, all of whom are highly qualified,” Clyburn said on CNN, one of several television appearances he’s made to draw attention to her candidacy. “I just know Michelle. And she has the kind of background that would offer some diversity to this court.”
Childs is the only potential candidate the White House has formally confirmed by name as being under consideration, despite acknowledging the names of a dozen other contenders. That confirmation came as Childs’ Senate hearing to be elevated to the circuit court position was postponed in light of her status as a candidate for the Supreme Court vacancy.
“President Biden will choose a nominee whose qualifications, record and character make them deserving of support on both sides of the aisle — and there are many candidates at the top of their field who fit that profile,” White House spokesman Andrew Bates told CNN, adding: “He is actively seeking the advice and recommendations of Republican and Democratic lawmakers, as well as legal experts, and appreciates the input he is being given both privately and publicly.”
South Carolina plays a key role
White House officials say the selection process for a lifetime Supreme Court appointment rises far above politics, yet the discussion about Childs also shines a light on the fact that the process actually began with a blunt political move from Biden two years ago this month.
It was just days before the South Carolina primary in February 2020 and Biden was desperate to revive his floundering presidential campaign. On a debate stage in Charleston, he vowed to nominate the first Black woman to the court. Then, he won Clyburn’s endorsement.
Two years later, Childs is among those potential nominees at the center of his promise.
Childs, who was nominated to the federal bench in 2010 by President Barack Obama, earned degrees from the University of South Florida and the University of South Carolina. Her champions say her state school experience would be a welcome change on the Supreme Court.
It puts her in contrast with other top contenders, including Leondra Kruger, who attended Harvard and Yale, and Ketanji Brown Jackson, who attended Harvard.
“The Harvard, Yale train needs to change,” Graham told CNN. “I don’t think we have had a publicly educated Supreme Court justice in 50 years, so that matters to me too.”
Asked whether he could support another nominee, Graham said: “It would be much more problematic,” even though he was one of three Republicans to vote to confirm Jackson to the US Appeals Court. He also voted to confirm Tiffany P. Cunningham as a federal circuit judge and Candace Jackson-Akiwumi to the 7th Circuit, both of whom are under consideration for the Breyer vacancy.
This week, Graham met with fellow South Carolinians Clyburn and Scott to discuss Childs and posted a photograph afterward. He also spoke to Manchin, viewed as a critical vote on any administration priority, about the judge.
“I understand the judge from South Carolina is a tremendous, tremendous candidate,” Manchin said. “She’s a tremendous candidate.”
Thin margins in the Senate
It’s a response that appeared to provide a window into a clear shift that has occurred over more than a decade. Gone are the days of 90-plus votes in favor of a nominee, replaced by partisan votes and clear political litmus tests.
“When a president campaigns on picking Supreme Court nominees of a certain mold and wins the election, we should give deference to them,” Graham said in 2005, when President George W. Bush — a Republican — was in the Oval Office. “If the nominee is well-qualified and of good character and integrity, they should be confirmed in an overwhelming fashion.”
Given those dynamics, White House officials are also keenly aware of the reality Graham pointed out when Breyer announced his upcoming retirement last month.
“If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support,” Graham said in a statement.
In a West Wing with decades of experience in Supreme Court battles in Biden, as a longtime chairman of the Senate Judiciary Committee, and Ron Klain, the chief of staff, who has played inside or outside roles in no fewer than nine previous nominations, the realities of today’s political environment are understood. Still, bipartisan support is welcome, and Biden has made clear that he wants advice — and names of potential candidates — from senators.
“I’m serious when I say it: that I want the advice of the Senate as well as the consent,” Biden said as he sat in the Oval Office with the top Democrat and Republican on the Senate Judiciary Committee, Dick Durbin of Illinois and Chuck Grassley of Iowa, respectively.
While the White House is carefully monitoring the praise from Graham, Manchin and other senators, officials say the kind words and the pledges to support her confirmation will not be a deciding factor. And one official suggested Biden would be wary of appearing overly swayed by outside voices, wanted instead to be viewed as making the decision on his own.
More than one White House official noted that Graham wasn’t exactly the Republican senator whose voice would carry overwhelming weight inside the West Wing.
Graham’s close Senate relationship with Biden imploded during the 2020 presidential campaign when the senator joined then-President Donald Trump’s attacks on Biden’s son, Hunter. That personal break has not been reconciled, even if White House officials would welcome Graham’s support for the nominee.
The praise has also drawn the ire of progressive groups that are raising concerns about her candidacy.
“Senator Graham is not, you know, somebody whose opinion we particularly follow or care about too much. Right?” said Paco Fabian, the campaigns and communications director for the liberal group Our Revolution. “If she’s getting praise from somebody like Senator Graham — somebody that, you know, was a big supporter of President Trump, for example — then you know, that’s not great, in our view. But really it’s about her record.”
White House officials say the decision will not be driven by political promises or considerations — beyond the commitment to nominate a qualified Black woman.
“We’ve been clear that the President is considering Judge Childs for the Supreme Court, in addition to a range of other deeply qualified candidates,” Bates said. “The President looks forward to evaluating her for this vacancy, and, if he selects another candidate, to her confirmation to the DC Circuit Court because of her extraordinary credentials and what she stands for.”
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