Labor issues complicate Judge J. Michelle Childs' Supreme Court candidacy

Liberal group warns it would 'actively organize' against Childs if she's picked.

February 14, 2022, 5:03 AM

The very career experience that makes Supreme Court candidate Judge J. Michelle Childs attractive to both Democrats and Republicans may now be complicating her potential nomination, as some labor and progressive groups warn the White House that her appointment would break President Joe Biden's promise to be "the most pro-union president" in history.

Childs, backed by influential South Carolina Rep. James Clyburn and the only candidate named by the White House as in the running to replace retiring Justice Stephen Breyer, spent eight years practicing labor and employment law at a prestigious South Carolina firm, Nexsen Pruet. Some of her clients included employers accused of race and gender discrimination and sexual harassment in the workplace.

PHOTO: Judge J. Michelle Childs of the United States District Court, District of South Carolina is seen in an undated photo.
Judge J. Michelle Childs of the United States District Court, District of South Carolina is seen in an undated photo.
Courtesy U.S. District Court, District of South Carolina via Reuters, FILE

"Her record shows that she wins for employers, and I think that's problematic in this moment," said Joseph Geevarghese, executive director of Our Revolution, billed as the nation's largest grassroots-funded progressive group allied with Sen. Bernie Sanders, I-Vt..

"If we have any doubt about where [the nominee] stands on labor rights or the power of corporations verses labor in our economy right now, we should not put them forward and we would actively oppose them," he said.

The firm's website claims "one of the largest and most experienced" labor and employment law practices in the Carolinas, touting "litigation skills to aggressively pursue any matter through trial when it is in the best interests of the employers we represent."

Earlier this month, a top lawyer for the American Federation of Government Employees, the largest federal employee union with roughly 700,000 members, publicly called Child's former employer an "anti-union law firm," adding "that's not what we need."

PHOTO: Joseph Geevarghese, executive director of Our Revolution
Joseph Geevarghese, executive director of Our Revolution, says the elevation of Judge J. Michelle Childs to the U.S. Supreme Court would break faith with union workers who supported President Biden's election.
ABC News

While Childs did help defend corporate clients, she also represented employees in claims of mistreatment by their employers, her former Nexsen Pruet colleagues told ABC News. Several described her has a fair-minded and well-respected litigator. In 2000, she was named a partner at the firm -- the first Black woman to become partner at a South Carolina law firm in a legal industry long dominated by white men.

"I would not characterize her work as anti-union or anti-employee," said Nexsen Pruet managing partner Leighton Lord, who joined the firm a year after Childs and worked alongside her for many years.

"She worked on a dozen or so employee matters," Lord said, referencing her work on behalf of employees suing their corporate employers. "Of the lawyers that came up in our firm, she's probably one of the ones that worked more on the employee side than any of our other employment lawyers. So she's very balanced in how she practiced in the private sector."

PHOTO: Leighton Lord, managing partner of Nexsen Pruet
Leighton Lord, managing partner of Nexsen Pruet, says J. Michelle Childs represented both employers and employees in workplace disputes during her tenure at the firm between 1992 and 2000.
ABC News

Childs participated in 25 employment cases -- in 23 of them defending an employer accused of alleged discrimination on the basis of race or sex, according to the American Prospect, a liberal publication which reviewed state court records during her tenure.

In one case, in the late 1990s, Childs represented a beachwear retailer sued by two former employees for alleged near-daily sexual assault at work. A federal jury sided with the plaintiffs, awarding compensatory and punitive damages, a decision upheld on appeal.

Her former colleagues say that court records do not reflect the many instances in which Childs achieved settlements for employees against their employers outside of court. Lord noted a 1999 case in which Childs represented a Mack Truck worker alleging wrongful termination, and she secured a "great" settlement without going to trial.

While some critics have accused Childs of working against unionization drives, Nexsen Pruet says it has never conducted any such campaigns and only has a single lawyer on staff specializing in union issues -- one who joined four years after Childs left the firm.

PHOTO: House Majority Whip James Clyburn, D-S.C., addresses reporters during a news conference to unveil the Joseph H. Rainey Room at the U.S. Capitol in Washington, Feb. 3, 2022.
House Majority Whip James Clyburn, D-S.C., addresses reporters during a news conference to unveil the Joseph H. Rainey Room at the U.S. Capitol in Washington, Feb. 3, 2022.
Greg Nash/AP, FILE

"Diversity is more than just race and gender, it's experience," Lord said. "Her time at Nexsen Pruet gave her private practice experience representing employees, representing companies -- it gave her a unique understanding of how the practice of law actually works."

Childs has won the endorsement of some labor groups, including the South Carolina chapter of the AFL-CIO, whose president, Charles Brave, Jr., said in a letter to Biden earlier this month that Childs would "represent all of us well."

After leaving Nexsen Pruet in 2000, Childs went on to oversee workplace safety regulations as an appointed deputy director at the state Department of Labor. From 2002 to 2006, she served as a workers' comp judge on a state commission adjudicating benefits for injured or disabled employees.

"Everybody feels heard when they come into the doors of her courtroom," said Meliah Bowers Jefferson, a former clerk for Childs on the federal bench.

PHOTO: Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, testifies before a Senate Judiciary Committee hearing on pending judicial nominations on Capitol Hill in Washington on April 28, 2021.
Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, testifies before a Senate Judiciary Committee hearing on pending judicial nominations on Capitol Hill in Washington on April 28, 2021.
Tom Williams/AP, FILE

Geevarhese said other candidates on Biden's short list, including U.S. Appeals Court Judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger, do not raise the same level of concern as Childs. He stopped short of endorsing a particular nominee.

"If Sen. Lindsey Graham [R-S.C.] is vouching for Michelle Childs, it should give Democrats pause," he said.

Graham said Sunday on ABC's "This Week" that he believes Childs would "get the most Republican votes" of any candidate on Biden's short list. "She would be somebody, I think, that could bring the Senate together and probably get more than 60 votes," he said.

The White House has not directly responded to the criticism of Childs but made clear she is still under consideration. The president "is actively seeking the recommendations of members of both parties as he prepares to make an historic choice and fulfill one of the most important duties of the presidency," said White House spokesperson Andrew Bates.

Jefferson, who remains close with Childs, said the judge is likely unfazed by the controversy.

"While she may have been known at the beginning of her career as someone who had this expertise in employment law, certainly while she was on the state court bench the breadth of her experience expanded," Jefferson said. "Her approach in every case, at least from my perspective, was that it is decided on its own merits."

ABC News' Ben Gittleson contributed to this report.

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