COLUMBIA — South Carolina's U.S. Rep. Jim Clyburn is pushing for one of his home state's federal judges to fill the next U.S. Supreme Court vacancy, arguing that U.S. Circuit Court Judge J. Michelle Childs would be the ideal candidate to fulfill President Joe Biden's promise to nominate a Black woman.
In a Feb. 22 interview with The Post and Courier, Clyburn said he has told Biden's staff and people close to the president he believes Childs brings the type of personal and professional background that would help diversify both the identity and life experiences of the high court.
"I've made it very clear that I feel very strongly about the need to have a diversity of experiences throughout government and the judicial system," said Clyburn, D-Columbia, whose support for Childs was first reported by The New York Times. "It's not just on the Supreme Court but on subordinate courts, as well."
A University of South Carolina law school graduate, Childs spent nine years in the Columbia office of Nexsen Pruet, where she became the law firm's first Black partner. She went on to work at South Carolina's labor agency before becoming a state workers' compensation commissioner.
The fact that Childs, a Detroit native, did not attend an Ivy League law school, distinguishing her from most Supreme Court nominees, is partly the point, Clyburn said. Eight of the nine current justices either went to Harvard or Yale. One justice attended Notre Dame.
"I hear President Biden talk about being a public college graduate as opposed to an Ivy Leaguer," Clyburn added. "That has some substance with him, and I would hope that would also have substance for those people who are doing the vetting and recommending as to who he ought to consider for the Supreme Court."
While Clyburn said he has not spoken directly to Biden about Childs and does not plan to, he said he would continue to lobby both publicly and privately for her ascension, a move he said had been instigated by a concern that other Democrats were pushing for more traditional Supreme Court nominees.
"I'm afraid that some in our party are lapsing into this notion that can only result in an elitist court, so that's a problem for me," Clyburn said. "Clarence Thomas is an Ivy League school graduate. Thurgood Marshall was an HBCU graduate. Which would you prefer?"
The General Assembly elected Childs as a state circuit judge in 2006. Then-President Barack Obama nominated Childs to serve on South Carolina's U.S. District Court in 2009, and the Senate confirmed her by voice vote in 2010.
"Everything I've heard from people at the 4th Circuit Court of Appeals and others is she is an outstanding judge," Clyburn said.
That assessment was backed up by state Sen. Dick Harpootlian, another Columbia Democrat and Biden friend who has tried cases in Childs' court and, like Childs, is a USC law graduate.
"At every level, she's been extraordinary in terms of how she's handled her job," Harpootlian said. "It would send a message, especially to African American women, that if you work hard and treat people with respect, you too can be on the Supreme Court. She's a role model for every lawyer she comes into contact with."
Leighton Lord, now Nexsen Pruet's managing partner, said he tried to talk Childs out of leaving the firm when they worked together in the late 1990s, but he said she was "drawn to public service."
"On top of being a great lawyer, she's got a great calm demeanor that makes her very effective," Lord said. "Because she doesn't get riled up, she stays cool, she was able to get things done."
The early jockeying for the next Supreme Court vacancy comes amid speculation in legal circles that Justice Stephen Breyer, 82, could soon retire to let Biden pick a younger replacement. Childs is 54, five years older than former President Donald Trump's last Supreme Court nominee, Amy Coney Barrett.
Clyburn declined to weigh in on whether he hopes Breyer does make way for a new nominee, saying he would leave that up to him. Instead, Clyburn said he's focused on making sure the next vacancy, "whenever it comes," is filled by "a Black woman, and hopefully a Black woman that has some real experiences in life that would bode well."
In the meantime, Clyburn said he would support first elevating Childs to the D.C. Circuit Court of Appeals, which has traditionally been viewed as a training ground for the Supreme Court due to its jurisdiction over Congress and federal agencies.
There is already one vacancy on the D.C. Circuit, and another is expected to open soon if Judge Merrick Garland is confirmed as the new U.S. attorney general.
"But there is no timeframe for how long she has to stay at the D.C. Circuit" before getting nominated to the Supreme Court, Clyburn added.
Given his close relationship with Biden and prominent role in Congress as the third-ranking House Democrat, Clyburn's voice could carry significant sway in the process.
Clyburn's endorsement of Biden days before South Carolina's crucial 2020 Democratic presidential primary helped Biden achieve a landslide victory, propelling him towards the party's nomination after a faltering start in other early states.
The night before that endorsement, Clyburn successfully encouraged Biden to commit to nominating a Black woman for the Supreme Court during a debate in Charleston.
Clyburn's influence has already played a hand in a few Biden picks, including his longtime friend and mentee Jaime Harrison for chairman of the Democratic National Committee, and U.S. Rep. Marcia Fudge, D-Ohio, for Secretary of Housing and Urban Development.
At least one of Childs' recent rulings would likely come up if she has another Senate confirmation hearing.
Last year, Childs struck down a witness signature requirement for South Carolina absentee ballots, determining that it would increase the risk for voters contracting COVID-19 while doing little to guard against voter fraud.
That decision was upheld by the 4th Circuit Court of Appeals but ultimately overturned by the Supreme Court. In a concurring opinion, Justice Brett Kavanaugh pointed to legal precedent that election administration should mostly be left up to state lawmakers and that the rules should not be changed by courts close to an election.
That could provide fodder for Republicans, who have complained about courts changing election rules in other states.
S.C. GOP chairman Drew McKissick said Childs "taking liberties with the law to strike down the state legislature's ability to make election law, which the Constitution specifically gives state legislatures, is certainly something that people would want to take into account."
"Seeing somebody with that philosophy getting elevated to the Supreme Court would not be a good thing for the country," McKissick said, describing Childs' ruling as an example of "judicial activism."
But S.C. Senate Majority Leader Shane Massey, an Edgefield Republican who also pushed for the witness signature requirement to remain, said he's found Childs to be a good judge, even though he disagreed with her on that particular ruling.
"She's bright, she's always struck me as fair and she has the appropriate demeanor as a judge," Massey said. "I think the president could do much worse than Michelle Childs."
Clyburn, for his part, fully agreed with Childs' ruling on witness signatures.
"I feel very strongly that all of that is a part of voter suppression, and I suspect her life's experiences gave her that same feeling, as well," he said.