At the moment, South Carolina District Court Judge J. Michelle Childs is the only person confirmed by the Biden administration to be under consideration for the soon-to-be-vacant Supreme Court seat. A favored pick of fellow South Carolinians Rep. James Clyburn (D-SC), the highest-ranking Black leader in Congress, and Sen. Lindsey Graham (R-SC), Childs’s work during her time as an attorney has recently come under scrutiny, as she defended employers against racial and gender discrimination allegations while working as a partner at the anti-union South Carolina law firm Nexsen Pruet.
Childs’s track record as a district court judge, a post she has held since 2010, has received less inspection. On numerous occasions, Childs issued such punitive decisions on criminal justice issues that those rulings were eventually overturned on appeal by higher courts. Throughout the 2010s, a period where criminal justice reform was increasingly prioritized for activists and Democratic politicians alike, Childs ruled against both plaintiffs and defendants who alleged everything from excessive force by prison guards to ineffective legal counsel to sentencing errors.
In March 2016, an inmate named Lewis Duckett sued the South Carolina Department of Corrections’ dietitian, alleging that the food he was forced to eat while in prison was so lacking in nutrients and vitamins that the state’s corrections facility where he was incarcerated was violating his Eighth Amendment right to avoid cruel and unusual punishment. Childs dismissed the case. Just one month later, the Fourth Circuit Court of Appeals overruled Childs’s decision, allowing for further proceedings.
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In 2017, inmate Benjamin Heyward brought a civil rights action against prison guard Audrey Price, alleging use of excessive force after Price 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. As a result of the macing, Heyward reported that his eyes were swollen for three days. He suffered chest pain for five days, and had persistent headache symptoms for a week.
Judge Childs ruled against Heyward, claiming he was unable to prove use of excessive force. But eight months later, the Fourth Circuit ruled that Judge Childs had wrongly rejected Heyward’s excessive-force claim based on an “arbitrary quantity of injury,” and reversed her decision to grant the officer a summary judgment.
Childs’s rulings weren’t confined to inmates alleging abuse and mistreatment in South Carolina’s prisons. She also, on multiple occasions, ruled against incarcerated people who alleged that they were wrongly or excessively sentenced, only to have those decisions reversed later or overturned by the circuit courts.
In 2017, Judge Childs dismissed a motion brought by Gerald Decosta Whaley, who had been sentenced in 2014 to 262 months in prison, followed by five years of supervised release, for selling marijuana, cocaine, and ecstasy with his brother. In 2015, Whaley argued that his lawyer had failed to provide him adequate legal counsel by not filing a direct appeal, and filed a motion to vacate or correct his sentence.
Childs dismissed Whaley’s petition without even granting him an evidentiary hearing, a decision that the Fourth Circuit found particularly objectionable. Less than a year later, that court reversed Judge Childs’s decision, finding in fact that Whaley “informed his counsel at sentencing that Whaley wished to file a direct appeal, but that counsel failed to file one.” In dismissing this motion without so much as a hearing, Judge Childs had “abused [her] discretion,” the court found.
Again in 2017, Judge Childs ruled against an inmate claiming to have been wrongly sentenced. In 2014, Jesse James Quarles pled guilty to being a felon in possession of a firearm. Three years later, he was given an elevated sentence of 180 months on the grounds that he was a “career criminal,” thanks to three prior burglary convictions.
Before that sentence was handed down, Quarles filed a motion claiming that he had been improperly charged as a career criminal, citing changes in U.S. law that had since reclassified burglary as nonviolent felony, a change that would have reduced his sentence substantially. In November 2017, Judge Childs dismissed Quarles’s motion, and upheld his 180 months.
Just a month later, before a higher court could act, Judge Childs reversed her own ruling, admitting that Quarles did not have the requisite three felonies needed to be classified as a career criminal.
Judge Childs’s repeated opposition to leniency in sentencing and alleged abuse cases brought by prisoners is notable in its own right; that she made those decisions on such dubious grounds that they were routinely overturned by higher courts indicates a commitment to tough-on-crime rulings beyond the letter of procedure.
Given the salience of criminal justice reform to Democratic politicians nationwide, it’s hard to reconcile a judge with such a record on criminal justice issues serving as the Supreme Court nominee of the Biden administration. Despite thus far refusing to legalize marijuana, the White House has restarted pattern-or-practice investigations into police departments, and has continued to talk up the importance of criminal justice reform.
Rep. Clyburn has been Childs’s loudest supporter among Democrats. In response to a question about Childs’s rulings, a Clyburn spokesperson said, “The insinuation that Jim Clyburn would support a nominee to the Supreme Court with the intent to undermine criminal justice reform is so preposterous that it discredits the integrity of this entire report.”
Throughout 2020’s campaign cycle, the Biden-Harris pairing went to great lengths to assure voters that criminal justice issues were a top concern for them, and that both of them had disavowed their own tough-on-crime pasts and the Democratic Party’s notorious Crime Bill of the 1990s.
It’s difficult to imagine someone with a record like Judge Childs’s winning votes from criminal justice advocates like Sen. Cory Booker, or even Dick Durbin, both of whom sit on the Senate Judiciary Committee and have claimed that these issues are particularly important for them. Childs’s record, meanwhile, is not shared by other front-runners: Ketanji Brown Jackson, for instance, was a former public defender and sentencing commission vice chair.