Who is Judge J. Michelle Childs? For starters, she anticipated the Supreme Court on same-sex marriage
WASHINGTON – Two years before the Supreme Court legalized same-sex marriage, an explosive lawsuit landed in Judge J. Michelle Child’s courtroom in South Carolina – a case one state newspaper predicted would make history no matter how she ruled.
Two women – one a state trooper, the other a U.S. Air Force veteran – had sued then-Gov. Nikki Haley over South Carolina’s ban on same-sex marriage. They had married a year earlier in Washington, D.C., and now they wanted one of the most deeply conservative states in the nation – their home state – to recognize that marriage.
Already a federal judge for three years, Childs handled the thorny constitutional questions raised by the suit with the same fidelity to fairness and efficiency that supporters say had become her trademarks as a state judge, a state government official and a trailblazing partner at one of South Carolina’s largest law firms.
Childs, now on President Joe Biden’s list of potential candidates for the Supreme Court, sided with the couple, ruling the state ban on gay marriage violated the 14th Amendment's guarantee of due process and equal protection. Her opinion was vindicated by a Supreme Court decision in 2015 invalidating similar bans in other states.
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"That case might have been viewed as a bit of a hot potato, but she didn't shirk from it one bit," said John Nichols, a veteran South Carolina lawyer who was part of the team that represented the women. "What she did was she cleared the air for the important issues and focused in on those important issues in the case."
When Associate Justice Stephen Breyer announced last month he would step down after nearly three decades on the Supreme Court, Childs wasn’t the most obvious candidate. Presidents tend to look first to federal appeals courts for Supreme Court nominees. And while Biden had nominated Childs, a district court judge, to the U.S. Court of Appeals for the D.C. Circuit, she wasn't yet confirmed.
But the Detroit native is now the only candidate the White House has confirmed that Biden is considering and she has drawn some Republican support, including from South Carolina Sen. Lindsey Graham, who has called her a "quality person."
Childs has a powerful ally in South Carolina Rep. Jim Clyburn, the third highest ranking Democrat in the House. Clyburn has known Childs for years, recommended her for U.S. district court in 2009 and was lobbying for her promotion to the appellate level ever since Biden vowed to nominate a Black woman to the Supreme Court for the first time in its history.
Clyburn said that he had frequently heard from judges and attorneys in the Palmetto State about Childs. After a while, those recommendations became hard to ignore.
"I heard people talk about her demeanor. Lawyers that appear before her didn’t always win but they all told me that she made losing almost enjoyable," Clyburn said in an interview. "I just never heard anything but great things about her."
Biden told NBC News recently that he has done a "deep dive" on "about four people" for his first Supreme Court nomination. Judge Ketanji Brown Jackson on the U.S. Court of Appeals for the D.C. Circuit and Associate Justice Leondra Kruger on California's Supreme Court are also widely seen as among the top candidates.
Childs would be an unconventional pick. Her supporters see that as an asset.
Unlike eight of the nine current Supreme Court justices, Childs didn’t enroll at Harvard or Yale for law school but instead graduated from the University of South Carolina School of Law in 1991. Instead of attending an Ivy League institution for her undergraduate studies, Childs graduated from the University of South Florida, another public university.
She attended both schools on scholarships.
Childs' supporters describe her as down to earth but a commanding presence in the courtroom.
"You knew she was going to go on to bigger and better things early on," said Bob Coble the former mayor of Columbia, South Carolina, and now an attorney with Nexsen Pruet, where Childs began her legal career.
The daughter of a policeman and a personnel manager for a telephone company, Childs moved with her family to South Carolina in part to avoid rising crime, her mother told the Greenville News in 2014. After law school, she started work for Nexsen Pruet as a summer associate. Within nine years, she was a partner, the first Black woman to make partner at a major law firm in South Carolina.
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A basketball fan who also enjoys live jazz, Childs is married to a gastroenterologist.
Childs served as a deputy director in South Carolina’s labor department under Gov. Jim Hodges, a Democrat, before becoming a state court judge.
When President Barack Obama nominated her to the federal bench in 2009 the White House said she "displayed exceptional integrity and an unwavering commitment to justice." She was confirmed by the Senate months later on a unanimous voice vote.
Childs has drawn criticism from some on the left who have questioned her views on labor and employment issues. At Nexsen Pruet, she represented several business clients in high-profile discrimination lawsuits.
Perhaps the most notable involved a woman who sued a beachwear company in 1995 after a floor manager "on an almost daily basis," grabbed her, fondled her legs and once pinned her against a box and tried to kiss her, court records show. Childs lost the case and a jury awarded the woman more than $150,000 in damages.
"President Biden has vowed to be the most pro-worker president ever," said Paco Fabian, director of campaigns at Our Revolution, a political group that spun off from Vermont Sen. Bernie Sanders' 2016 presidential campaign. "If that's the case then he shouldn't be nominating somebody that has a questionable record on worker rights."
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It's a criticism that could come up at a Senate confirmation hearing, if she was nominated. But so far, there’s no indication progressive Democratic senators are concerned. Childs’ supporters say lawyers shouldn't be tainted by their clients' actions and some labor leaders in South Carolina have come to Childs’ defense.
"She only did what she had to do to represent her client,” said Charles Brave, president of the South Carolina AFL-CIO, who sent a letter to the White House this month endorsing Childs for the Supreme Court. "It's a no brainer for me."
Clyburn dismissed the criticism as sour grapes from the 2020 election, saying that progressive groups raising it have "more of an issue with me" than they do with Childs. Clyburn is widely credited with turning Biden's presidential campaign around in 2020 with a key endorsement ahead of the South Carolina Democratic primary.
He made the endorsement after Biden vowed to nominate a Black woman to the nation's highest court.
"Those are Bernie’s people," Clyburn said. "They thought they were going to win South Carolina."
'They respect her'
Former colleagues and allies say Childs is cool under pressure and relatable.
Kiosha Dickey, an attorney who clerked for Childs in state court from 2007 to 2008, recalled an incident in which the brother of a defendant Childs had sentenced to prison jumped the bar separating the court's public area from where the attorneys and court officers sit.
Childs could have been stern with the man or threatened punishment. Instead, Dickey said, she spoke with him and calmed him down.
"If you talk with attorneys on both sides of litigation they will all tell you that they respect her and that she is just so courteous to everyone involved in the process," said Luther Battiste, a South Carolina lawyer who has known Childs since she was in high school.
Angela O'Neal first met Childs by chance at a restaurant after a University of South Carolina women's basketball game. O'Neal, who now heads up electronic discovery work at Childs' old law firm, said Childs – by then already a federal judge – took an interest in her career as a mentor, just as she has with many others.
When O'Neal was rounding up people to appear on a panel discussion about her work, for instance, Childs didn't hesitate to say "yes."
"When I got this new position, one of the first people to congratulate me was Judge Childs," O'Neal said. "She actually goes and invests in people."