Clyburn’s favorite for high court faces scrutiny over corporate work 

A federal judge whose name has been among those floated as a potential replacement for Justice Stephen Breyer is likely to face growing scrutiny from progressives over her background as a lawyer defending employers from workplace lawsuits.  

President Biden last month nominated U.S. District Judge J. Michelle Childs to the powerful D.C. Circuit Court of Appeals, and though her confirmation is still pending, she is already among the list of candidates to replace Breyer. 

After the Senate Judiciary Committee quietly postponed her confirmation hearing for the D.C. Circuit seat that was scheduled for Tuesday, the White House confirmed that Childs is a candidate to replace Breyer, telling The Washington Post on Friday that the judge is “among multiple individuals under consideration for the Supreme Court.” 

The statement made Childs the only person that the White House has publicly said to be in the running for a nomination to Breyer’s seat. 

Childs’s ascent can partly be attributed to a powerful ally in Rep. James Clyburn (D-S.C.), the No. 3 Democrat in the House who has been lobbying Biden on her behalf for at least a year and who this week has been touting her as a potential Supreme Court nominee that could attract some Republican votes.  

But her record could hold a number of red flags for progressives who have thus far cheered Biden’s first-year record of elevating former public defenders, civil rights lawyers and labor champions to the federal bench. 

Jeff Hauser, the executive director of the progressive Revolving Door Project, said that Childs’s background as a management-side labor attorney is “conspicuous” among Biden’s judicial appointments so far and that it raises questions that need to be answered in order to ensure that broad support from the Democratic coalition should she be nominated to the Supreme Court.

“There definitely are a lot of questions that would have to be asked about choosing to work with employers against employees in that context,” Hauser said, referring to South Carolina’s reputation as a state with few labor protections for employees. “This is not an even playing field, where both sides are equally adversarial.”

He added that he would have to hear more from the judge and see how labor advocates evaluate her in order to fully assess her from a progressive standpoint, but “it can’t just be assumed that all nominations would be equally smooth sailing within the Democratic coalition.”

“So I think that Joe Biden should focus on getting this nomination right, because this nomination will long outlive him in its implications for this country,” Hauser said.

The White House did not respond when asked for comment.

In some ways, Childs’s career as a trailblazer could be seen by the White House as the ideal pedigree for a Supreme Court justice as Biden seeks to make history and fulfill a campaign pledge to appoint the first Black woman to the Supreme Court. 

Born in Detroit in 1966, her father was a police officer who died when she was a teenager. Childs’s mother, a personnel manager for Bell Telephone, later decided to move the family to Columbia, S.C. 

Childs graduated from the University of South Florida in 1988 with a bachelor’s degree in management, then earned a law degree and a master’s in personnel and employment relations from the University of South Carolina in 1991. 

After law school, she went to work as an associate for the law firm Nexsen Pruet, one of the most prestigious in South Carolina. She made partner in 2000, becoming the first black woman to do so at the firm. 

She then entered the public sector, working as a deputy director in the South Carolina Department of Labor before being appointed to serve as a commissioner on the state’s Workers’ Compensation Commission and later as a state circuit judge. 

Former President Obama nominated her to a federal district court seat in 2009, and the following year she sailed through her confirmation process, with the Senate approving her in a voice vote on the floor. 

It’s unclear whether her confirmation for the D.C. Circuit or a potential Supreme Court nomination would go as smoothly.  

Progressive scrutiny may prompt questions about her decision to work defending employers in a state that is considered to be especially hostile to workers’ rights. According to the Bureau of Labor Statistics, South Carolina is last in the nation in union membership rates, at just 1.7 percent of the workforce. And the nonprofit group Oxfam ranked it 48th in an index of the states with the best worker protections. 

The past year has seen a record number of judicial confirmations in which Biden prioritized former public interest lawyers over those from elite legal circles filled with former prosecutors and corporate attorneys in order to bring a diversity of experience to a federal bench where former public defenders, civil rights advocates and workers’ rights lawyer are severely outnumbered. 

It’s too early to tell whether a Childs nomination to the Supreme Court would divide the Democratic Party. But progressives and the labor movement have already made clear the expectation that Biden extend his record of nominating underrepresented public interest lawyers to the high court. 

They see an urgent need to fill Breyer’s upcoming vacancy with a jurist with progressive bona fides as the six-justice conservative majority appears increasingly willing to dismantle business and environmental regulations, reproductive rights and labor protections. 

“With Justice Breyer retiring, President Biden has an opportunity to nominate to our nation’s highest court a Black woman who has experience representing working people and our communities,” Mary Kay Henry, president of the Services Employees International Union, said in a statement last week. “Americans deserve a Supreme Court that upholds and advances racial and economic justice and shields workers from the predatory special interests and corporations who continue to treat them as disposable.” 

“There is no room on the Court for more prosecutors or lawyers who spent most of their careers representing corporate interests,” Henry added in her statement. 

Clyburn has touted Childs as someone who could win some Republican support in a Supreme Court confirmation and is making the case that the nation’s highest court should feature diversity not only as it pertains to race and gender, but also when it comes to education, professional experience and regional upbringing. 

“She has been just everything that Joe Biden says he would like to see in people in government,” he told The Hill last week. 

And in an interview with The Washington Post last week, Clyburn said her experience in employment law adds to experiential diversity she could bring to the court. 

“She has been a workers’ comp judge, knowing the corporate side of the world as well as the labor [side]. She was deputy director at the Labor Department here in South Carolina. She knows the labor issues, she knows the management issues, and that’s why, everywhere I go, people tell me what an outstanding federal judge she’s been at the district level,” Clyburn told the Post. 

But if Childs receives the nomination, many in the progressive wing are unlikely to see that experience as a benefit. 

Tristin Brown, the policy and program director at People’s Parity Project, a progressive network of law students and young lawyers advocating to reform the legal system, said that past corporate legal work should be carefully scrutinized when evaluating whether a judicial nominee will be deferential to powerful interests in court. 

“As a Black woman, I know the importance of this moment. We have an opportunity right now where we can put the first Black woman on the Supreme Court, which is a body and institution that throughout its entire existence has almost been exclusively made up of white males,” Brown said. 

“At the same time, I know how critically important it is to make sure that not only are we leveraging this opportunity to make sure we get the first Black woman on the Supreme Court, but to make sure that we get the first Black woman who also has a demonstrated interest in commitment and protecting civil and human rights, and one who particularly has a record of being invested in protecting the rights of everyday workers in America.” 

Mike Lillis contributed.