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The Biden administration confirmed a U.S. South Carolina District Court judge backed by U.S. Rep. James Clyburn is among those considered to replace retiring Supreme Court Justice Stephen Breyer.
Michelle Childs, 55, was tapped for a promotion last month by President Joe Biden to the Court of Appeals for the District of Columbia Circuit, but the nomination has been postponed as she is now in consideration for the highest court in America after Biden vowed to nominate a black woman for the Supreme Court in February.
It came as part of a deal Biden struck with Clyburn, who previously chaired the Congressional Black Caucus and offered his endorsement for Biden in 2020 with a caveat – that the then-candidate publicly pledge to place a black woman on the Supreme Court should he get the chance in his tenure.
White House spokesman Andrew Bate said in a statement: ‘Judge Childs is among multiple individuals under consideration for the Supreme Court, and we are not going to move her nomination on the Court of Appeals while the President is considering her for this vacancy.’
Michelle Childs, 55, a US South Carolina District Court judge, was confirmed to be among the candidates to replace Supreme Court Justice Stephen Breyer
The South Carolina judge has a key ally in Rep. James Clyburn (center), a longtime friend of Biden’s who offered his endorsement in 2020 to the then-presidential candidate in exchange that Biden publicly vow to nominate a black woman for the Supreme Court if given the chance
Biden said he would name his nomination for the Supreme Court in February
Childs had earned criticism after her September 2020 decision to kill a measure in South Carolina’s new elections bill that would have tightened security on mail-in ballots, which was believed to tip the favor for Democrats.
Before the 2020 election, the South Carolina legislature passed a bill allowing all voters to vote absentee regardless of their reason in a state of emergency due to the COVID-19 pandemic, but an amendment to remove a provision requiring a witness signature failed.
Childs upheld the law but struck down the signature requirement in a decisive victory for state and national Democrats who voted by mail at a higher rate than Republicans.
It was swiftly overturned by the Supreme Court in early October.
Childs had also demonstrated a significant deference to Congress during her 2010 confirmation hearing the the South Carolina US District Court – indicating she may give federal lawmakers the benefit of the doubt on some occasions.
When asked by Senator Dianne Feinstein about her understanding of Congressional authority as given by the Constitution, the Childs had said: ‘With respect to any laws respecting your Congressional powers, I would presume that anything that you all are doing is constitutional and would approach it with that mindset, knowing that you would only enact laws that you have had due deliberance over and consider deliberation over.’
But despite her progressive resume, Childs revealed her view on interpreting the Constitution is more in line with who her conservative colleagues on the court would be.
Childs replied ‘no’ when asked on her nomination questionnaire whether she thought the Constitution is a ‘living’ document — meaning its interpretation cannot be changed while society changes.
Childs’ objective take is similar to how Justice Amy Coney Barrett described her ‘Originalist’ interpretation of the nation’s laws.
Childs’ nomination received backing by Rep. Clyburn, of South Carolina, who said Child’s background, as a graduate of state universities in Florida and South Caroline, were sorely needed in the Supreme Court which has eight justices that went to Ivy League schools.
Child spent a decade in private practice and as a state court trial judge in the South Carolina Circuit. Also in her tenure she was deputy director of the South Carolina Department of Labor, Licensing and Regulation, and commissioner on the South Carolina Workers’ Compensation Commission.
US Rep. James Clyburn, of South Carolina, is backing Childs and said her background is sorely needed in the US Supreme Court
Justice Stephen Breyer, on of the liberal justices, announced his retirement on Thursday
Biden announced liberal Justice Breyer’s retirement after nearly 30 years on the court on Thursday, with the 83-year-old standing by his side.
Getting a new young liberal on the high court would be a badly-needed win for Biden, whose first year in office was marked by foreign policy crises, legislative setbacks and plummeting poll numbers.
During his remarks on Thursday Biden promised to hear recommendations from both sides of the aisle, and confirmed that he would use his task to shape the U.S. judicial system for his political promise.
‘Our process is going to be rigorous. I will select a nominee worthy of Justice Breyer’s legacy of excellence and decency,’ Biden said. ‘While I’ve been studying candidates’ backgrounds and writings, I’ve made no decision except one: the person I will nominate will be someone of extraordinary qualifications, character, experience and integrity.’
‘And that person will be the first black woman ever nominated to the Supreme Court,’ the president added.
Biden said it was ‘long overdue’ and noted how he had made that commitment during the 2020 campaign – as part of a pledge to secure a key endorsement from South Carolina Rep. Jim Clyburn, the most powerful black member of Congress. ‘And I will keep that commitment,’ Biden said.
Senate GOP Leader Mitch McConnell immediately seized on Biden’s remarks, pointing to the razor-thin margin in the U.S. Senate, where the nominee will have to be confirmed.
‘Looking ahead – the American people elected a Senate that is evenly split at 50-50. To the degree that President Biden received a mandate, it was to govern from the middle, steward our institutions, and unite America,’ McConnell said. ‘The President must not outsource this important decision to the radical left. The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution,’ the Kentucky Republican added.
Among the leading contenders for the Supreme Court nomination include D.C. Circuit Judge Ketanji Brown Jackson.
Jackson, 51, widely thought to be Biden’s top pick, was elevated from her previous post as a judge on the federal district court in Washington, D.C., where she remained from 2013-2021.
Jackson, widely seen as Biden’s top pick, was a lawyer for Barack Obama’s 2008 presidential campaign
During her confirmation hearing for the highly influential D.C. Circuit Court of Appeals, Jackson told the Senate Judiciary Committee that her race would add ‘value’ to the bench when trying to explain how it would not play a role in her decisions.
‘I’m looking at the arguments, the facts and the law. I’m methodically and intentionally setting aside personal views, any other inappropriate considerations, and I would think that race would be the kind of thing that would be inappropriate to inject into my evaluation of a case,’ she said.
Then Jackson added: ‘I’ve experienced life in perhaps a different way than some of my colleagues because of who I am, and that might be valuable – I hope it would be valuable – if I was confirmed to the court.’
Jackson had also served as a lawyer for Barack Obama’s 2008 presidential campaign.
Another judge widely favored to earn the nomination is California Supreme Court Justice Leondra Kruger.
Kruger is the youngest prospective pick being reported at just 45 years old, though she’s already turned down Biden’s offer for Solicitor General twice
Kruger would be a younger choice at 45, and is widely seen as a moderate to liberal judge in the Golden State.
She served under Obama as acting Principal Deputy Solicitor General from May 2010 – June 2011 where she argued 12 cases in front of the Supreme Court. During her time at the Department of Justice, Kruger earned in both 2013 and 2014 the Attorney General’s Award for Exceptional Service, which is the agency’s highest employee award.
She also clerked for late Justice John Paul Stevens who served on the Supreme Court from 1975 to 2010 and died in 2019.
Kruger was also the youngest person appointed to the California Supreme Court when then-Governor Jerry Brown nominated her in 2014.