In the wake of Justice Stephen Breyer's retirement, there has been much discussion about Biden's commitment to nominating a black woman for the vacant Supreme Court appointment. Many have praised this vow as a much-needed dose of inclusion for an office that - despite representing an increasingly racially diverse nation - has never included a woman of color. Others - largely right-wing pundits and their allies in Congress - chastised Biden for his decision, with repeated use of buzzwords like "reverse racism" and "quota filling."
The conservative position is absurd on its face, a blatant example of coded language being used to stir racial resentment. The Republicans' response, rather than being a reaction to identity politics, is merely a rejection of identity politics that doesn't suit their base. No such complaints were made when Trump and Republican Senators touted Amy Coney Barrett's status as a working mother and lifelong Catholic. Many commentators deriding Biden for his choice of Supreme Court nominees actively attacked Barrett's critics, often citing her religious devotion and working mom status as the two attributes "the left" despised her for. Exactly the kind of identity-based rhetoric they are now castigating. With such blatant hypocrisy on display, it becomes difficult to take the right-wing critique seriously. Despite one side being obviously absurd, that doesn't make the opposition correct. On the surface, putting an African-American woman on the Supreme Court would be a victory for societal progression. However, such a determination cannot be made without ensuring that the woman in question has a track record of standing up against racist institutions for victimized groups. Without those assurances, Biden's choice would prove to be only a symbolic gesture.
"Diversity," Without Diversity of Thought
Michelle Childs is one of the primary contenders for Joe Biden's Supreme Court pick. Nominated by President Obama in 2009, Childs has served as a judge for the U.S District Court of South Carolina since 2010. Unlike her fellow candidates, Childs graduated from state schools, getting her B.A. at the University of South Florida, and her Juris Doctor at the University of South Carolina.
Childs's is the only candidate confirmed by the Biden administration to be under consideration. Since that announcement, she has received considerable support from powerful voices throughout D.C., including House Majority Whip Jim Clyburn, and Republican Senator Lindsey Graham, who, in an interview with Face the Nation, called her an "awesome person". A sentiment shared by fellow Republican Senator Tim Scott, who referred to Childs as a "strong candidate". Such Republican backing will prove crucial, as Democrats have lost their working majority in the Senate since the hospitalization of New Mexico Senator Ben Lujan.
To her credit, Child's state university credentials would be a break from Supreme Court orthodoxy, with nearly every other justice being an alumnus of Harvard, Yale, Princeton, and other Ivy League schools, their prestigious education often corresponding with equally elite economic backgrounds.
Similarly, there are a few admirable decisions under her belt, including siding with a lesbian couple against South Carolina's refusal to recognize their out-of-state marriage in 2014, and barring the requirement that witnesses be present when voters sign absentee ballot envelopes during the 2020 election.
Unfortunately, the blemishes on her record far outnumber the checkmarks. During his Face the Nation interview, Graham spoke about Childs' confirmation as making sure the court looked "more like America". Yet creating a Supreme Court which better reflects America doesn't guarantee that said court has Americans' best interests in mind. As Childs' abysmal record makes clear.
Childs has consistently been on the wrong side of history when it comes to civil and labor rights. Before becoming a judge, she worked as an associate, and eventually partner, for South Carolina law firm Nexsen Pruet Jacobs & Pollard, from 1992-2000. Little was known about Childs' time at Nexsen Pruet until Alexander Sammon - a writer for progressive public policy magazine American Prospect - wrote about it. What he found was disappointing. To quote Mr. Sammon:
"Bloomberg Law has 25 cases registered in which Childs participated during her time at the firm; 23 of those involve alleged employment discrimination or other employment-related civil rights violations. Race and gender were common factors in such suits; seven such cases entailed race-based job discrimination, and another three involved sex-based job discrimination.
In all but two registered instances, Childs was not representing the plaintiff but the defendant, meaning that she overwhelmingly represented employers accused of violating civil rights and gender discrimination laws in the workplace."
Nexsen Pruet itself was long billed as an essential resource for anti-union corporations. Posting on its website only one year ago about the dangers of the PRO Act - a Democratic bill that would have greatly expanded the power of trade and labor unions - the firm stated that "union-free employers" would be "wise to carefully monitor the bill, and to update related union-free training, policies, and procedures."
Comparatively, her record on the district court bench is equally spotty. Child's harsh, punitive decisions on criminal justice issues were often overturned in higher courts. For example, in 2017, when a prisoner named Benjamin Heyward brought a civil rights action against one of his guards, alleging excessive force after the said guard " pepper-sprayed him in the face in the course of an argument that arose over a request Heyward made for some cleaning solvent to tidy his cell" Childs ruled against him, claiming excessive force couldn't be proved.
Only eight months later, the Fourth Circuit ruled Childs had wrongly rejected Mr. Heyward's claim "based on an “arbitrary quantity of injury,” and reversed her decision to grant the officer a summary judgment". This is only one of many incidents documented by Sammon, with Childs ruling against "plaintiffs and defendants" who alleged everything from "excessive force by prison guards to ineffective legal counsel to sentencing errors".
Childs has a long history of defending corporations against people harassed and bullied under their employ, and maintaining the judicial status quo by enforcing unfair sentencing against people without recourse. Nevertheless, allies in legal circles, Congress, and the media continue to portray her as an "outsider," suggesting her presence alone on the Supreme Court would be a giant leap towards change.
The Wall Street Journal Editorial Board whined about progressive critiques of Childs' record, saying "Whatever happened to diversity, as progressives try to disqualify Judge J. Michelle Childs?", and championing her for being "the first black woman to be a partner at a major law firm in South Carolina", implying the left cares more about "ideological conformity than diversity". No mention of what she did at that law firm, or why people may be enraged by her defense of clients in racial discrimination lawsuits.
CNN analyst Bakari Sellers - showing what passes for "analysis" at CNN - called Childs "down to Earth", claiming she is a judge "without any air of pretension", using foolproof evidence like her being "the daughter of a police officer" and an apocryphal anecdote about seeing her answer a phone call from a young clerk during a baseball game. Such shallow reasoning may appear strange, were it not indicative of a trend, showing the deflection so often utilized by establishment political and media figures when promoting unpalatable actors.
Gina Haspel- overseer of a torture facility in Thailand, who authorized the destruction of tapes documenting those sessions- was applauded by allies when Trump nominated her as CIA director. Her appointment was portrayed as a victory for feminism, with the CIA posting an extensive Tweet thread detailing how her parents instilled a "deep love of country & a commitment to public service", and the condescending misogyny she faced during her early days in the field, saying she "quickly proved doubters wrong".
Once Pete Buttigieg entered the Democratic primary, references to his weak response to black activists condemning South Bend's racist policing practices were forgotten, replaced by fawning profiles in Vogue, and write-ups in New York Magazine calling him the Democrat's "folksy heartland hope". Neither Buttigieg, Haspel, nor Childs has attempted, in their long careers, to challenge the structural issues within their respective institutions. Each has done immeasurable damage, either by crafting and implementing policies that caused harm to vulnerable communities or by neglecting to end those that did out of primal, opportunistic, careerism.
Years of political stasis have numbed the public, and their ability to imagine a society not tethered to the rapacious capitalism they've become acquainted with has been diluted. The emergence of figures like Childs, Buttigieg, and Haspel creates the simulation of change, even as the idols in question largely conform to the ideological underpinnings of the systems their supporters despise.
A New Way Forward
We must not allow ourselves to be fooled again. Whoever Biden chooses to serve on SCOTUS will remain in their position for the foreseeable future. Quite possibly shifting the Overton window for how "liberal" Supreme Court Justices are allowed to be. Biden pledged to union organizers that he would be the "strongest labor president you've ever had". The Roberts Court is decidedly pro-business, a tendency that has reared its head in several cases, as purportedly liberal justices sided with corporations on everything from a limitation of union recruiting to conflicts of interest to child slavery.
If Biden chose someone like Ketanji Brown Jackson - a circuit judge on the United States Court of Appeals for the District of Columbia whose record on labor rights aligns well with that vision - he could not only usher in the ascendance of a black woman to the nation's highest court but also one who would dissent against the prevailing deferential attitude held by her peers. Despite receiving her Juris Doctor at Harvard, she also served as a public defender in her early years, giving Jackson a background shared by no other Supreme Court justices, and one of the legal profession's most underappreciated branches.
Lesser known than both Jackson and Childs, Leondra Kruger is an Associate Justice of the California Supreme Court and has been since 2015. Attending private school throughout her childhood, and completing her law degree at Yale and Harvard, makes Kruger an unattractive choice for people hoping to break from the Ivy League to SCOTUS pipeline. Kruger's rulings are also a mixed bag, exhibiting reflexive centrism unwanted by both the left and right. Regardless, Kruger's track record is much better than Childs, with enough unexpected rulings on topics like sexual assault and the death penalty to make her worthy of consideration.
Ultimately, nothing I write will influence President Biden's decision. Very few people writing about this topic are privy to the conversations being had on 1600 Pennsylvania Avenue. I suspect the person Biden appoints will be determined more by the final conversation held before the announcement than by the ideas shared in opinion columns.
All I can say is this: Since winning the 2020 presidential election, Biden and his allies have made an effort to promote him as a transformative president. One who, despite his age and conventional political career, can face the 21st century's problems with clear eyes and a decisive vision.
The Supreme Court will still be held hostage by the conservative majority, irrespective of who Biden chooses to fill Breyer's seat. But the woman Biden decides upon isn't just a justice: she'll be a symbol of the Biden presidency as a whole. Will he throw his weight behind someone like Ketanji Brown Jackson, and inspire liberal judges across the country by placing a fighter against corporate malfeasance on the nation's highest court? Or will Biden embrace the "mainstream Democrat" label, default to Michelle Childs, and trade the possibility of real change for hollow symbolism?
Empowering a woman who has repeatedly betrayed the values the Democratic Party claims to hold. The choice is entirely Biden's. I can only hope he makes the right one.