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The Case for Judge J. Michelle Childs to Replace Justice Breyer

U.S. District Court photo

As a non-Ivy League Southerner who ruled in favor of LGBTQ+ rights, Childs would bring a sense of realism to SCOTUS.

I went to a small college in northwest Pennsylvania, Clarion University of Pennsylvania. Throughout my career, I can't tell you the number of times I had to familiarize people with where and what Clarion was all about.

I remember a job interview with a very distracted interviewer years back, who was typing away on his computer while firing out questions. He asked me where I went to college, and I told him. He only heard the last part, "University of Pennsylvania." And he looked up, smiled and said, "Oh, you're an Ivy Leaguer." I just smiled back since it was useless trying to explain the truth.

What I've lacked in Ivy League smarts, I've made up for in street smarts all these years -- at least that's my perception -- while bouncing around corporate America. I had three bosses who were Ivy grads, and they are among the three worst bosses I've had in my 30-plus career in public relations.

Let me be clear, I'm not dissing Ivy Leaguers, and it sounds so cliche, I know, but I have good friends who graduated from Harvard and Yale. And I'm certainly not implying that Ivy grads are bad bosses, but when I've been in a room full of super smart people, I've always been able to dumb down convoluted language that sails over a normal person's head. I've been told many times that I have a gift for no-nonsense straight talk.

That gift really was a general sense of realism and growing up in a middle-class environment that I always hark back to when things get complicated. And at this point in the history of the Supreme Court, my sense is we need someone with street smarts rather than book smarts to try and make sense of the high flatulent talk -- and personalities -- that come from the Ivy brains on the court.

In his column last week, titled "Let's Bring the Supreme Court Back Down to Earth," New York Times columnist Jamelle Bouie writes, "It is something we've lost in our current norms regarding the court, where members come from a handful of the same law schools, have some of the same kinds of experience and largely avoid any public-facing political work before donning the robes of a Supreme Court justice."

Over the last several days, I combed through the backgrounds of the leading contenders to take Justice Stephen Breyer's place on the Supreme Court, and one stands out for her assumed street smarts and ability to bring the Court back down to earth and her law degree from the University of South Carolina, and that is South Carolina judge J. Michelle Childs.

Childs did not attend an Ivy League school, which would make her an outlier on the court. Amy Coney-Barrett received her law degree from Notre Dame, about as close as you can come to being an Ivy League school.

The rest of the court? All Harvard or Yale. Breyer attended Harvard, as did Chief Justice John Roberts and Justices Elena Kagan and Neil Gorsuch. Justices Sonia Sotomayor, Clarence Thomas, Samuel Alito, and Brett Kavanaugh attended Yale. Talk about a lopsided majority.

And the leading contenders to fill Breyer's seat? According to the Associated Press, Ketanji Brown Jackson and Wilhelmina Wright are Harvard Law graduates. Leondra Kruger, Sherrilyn Ifill, Holly Thomas, Eunice Lee, and Candace Jackson Akiwumi all received their law degree from Yale.

As a judge for the United States District Court for the District of South Carolina, Childs made a bold decision for a Southern judge in November of 2014. Before same-sex marriage was legalized, Childs ruled in favor of two women who sued to have the state recognize their marriage performed in Washington, D.C., finding South Carolina's failure to recognize their marriage to be unconstitutional.

She recognized the fundamental right of same-sex couples who were married out-of-state to have their marriages legally recognized in the South. So,we can assume that she supports equal rights of LGBTQ+ individuals, or at least LGB.

Childs has another ace in her pocket, and that is the House Majority Whip and longtime South Carolina Congressman Jim Clyburn, who, perhaps more than anyone else, is the reason that Joe Biden is president.

Before the president was sworn in, Clyburn sent a letter to his transition team urging Biden to nominate Childs to the U.S. Court of Appeals for the District of Columbia, which he eventually did. Her nomination was sent to the Senate on January 10, 2021, 10 days before Biden was sworn in. Childs is still awaiting confirmation from the Senate for that post; however, there might be something bigger for her now.

The bottom line is when Clyburn, one of the most respected and influential members of Congress,and one of Biden's closest confidantes, makes a request, he usually gets what he wants, and he is pushing hard for Childs's nomination to the Supreme Court.

The other thing Childs has going for her is her similarity to the president himself. Like Childs, Biden prides himself on being a regular guy; his strength is being down in the trenches with the working man.

Further, Biden's last five predecessors, George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, and, unfortunately, Donald Trump, all have Ivy League backgrounds. Biden prides himself on being a graduate of the University of Delaware, and receiving his law degree from Syracuse University. So Childs matches perfectly with the pulling-up-by-the-bootstraps Biden, who reached the presidency without an Ivy pedigree.

The historic exclusion of Black women from the judiciary is jaw-dropping, and SCOTUS justices coming from the South are rare. Justice Thomas is from Georgia, but before him, you'd have to go all the way back to 1949, when President Truman nominated Tom Clark, a Texan, to the bench.

Justice Clark served until 1967 and was replaced by the court's first Black person, iconic Justice Thurgood Marshall, who received his law degree from Howard University. He, probably more than anyone else in the court's history, brought a sense of reality to his position.

During the next few weeks, prior to Biden's decision on a replacement for Breyer, which he said will come at the end of this month, the administration will be purposely leaking rumored front-runner candidates to the media. These will be trial balloons to see if anyone comes forward to poo-poo the nomination, and for the administration to get a sense of reaction to the supposed "leading" candidate.

At some point, we'll see a trial balloon go up for Childs, but my guess is that the administration is quietly positioning her as the front-runner behind closed doors. Biden has tapped former Alabama Sen. Doug Jones to lead the confirmation process. It probably isn't a coincidence that he's from the South, and that he received his law degree from the Cumberland School of Law.

John Casey is editor at large for The Advocate.

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John Casey

John Casey is a senior editor of The Advocate, writing columns about political, societal, and topical issues with leading newsmakers of the day. John spent 30 years working as a PR professional on Capitol Hill, Hollywood, the United Nations and with four large U.S. retailers.
John Casey is a senior editor of The Advocate, writing columns about political, societal, and topical issues with leading newsmakers of the day. John spent 30 years working as a PR professional on Capitol Hill, Hollywood, the United Nations and with four large U.S. retailers.