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Labor groups wary of potential Supreme Court pick backed by top House Democrat

WASHINGTON, DC ‐ February 1, 2022: President Biden meeting Tuesday with Vice President Harris and top senators about the forthcoming Supreme Court vacancy. (Demetrius Freeman/The Washington Post)
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Union leaders are increasingly wary of President Biden’s potential selection of Judge J. Michelle Childs as a Supreme Court justice, citing her time working on behalf of employers against worker claims. The situation sets up a potential rift with Rep. James E. Clyburn, a top Democrat who has been pushing for her nomination.

The labor leaders for now are mostly expressing their concerns in quiet back channels, but that could soon change. “She comes from an anti-union law firm where she spent time defending employers from claims of civil rights and labor law violations,” David Borer, general counsel of the American Federation of Government Employees, said in an interview. “That’s not what we need.”

Borer said he was speaking in his personal capacity and not on behalf of his organization. He noted that unions have not come out against her yet but added, “I suspect we will at some point.”

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Sara Nelson, president of the Association of Flight Attendants, said she enthusiastically backs Biden’s promise to choose the first Black woman for the Supreme Court because “it’s past time and Black women are amazing” — but that it should not be Childs.

“There’s a long list to choose from,” Nelson said. “That’s why it’s great that President Biden can pass on a management-side lawyer like Childs, who has argued disdainfully against workers’ rights in favor of several other candidates who have been in the trenches with workers and have a proven record of upholding worker rights.”

Andrew Bates, a White House spokesman, rejected criticism of Childs’s record, saying in a statement that Childs’s tenure at the South Carolina Workers Compensation Commission “was defined by fighting for injured workers” and emphasizing that she was one of the first Black women to serve as a partner at a major South Carolina law firm.

“The president looks forward to evaluating her for this vacancy, and, if he selects another candidate, to her confirmation to the DC Circuit Court because of her extraordinary credentials and what she stands for,” Bates said.

Still, the unions’ mounting concerns are the latest twist in what has become an unusual dynamic ahead of Biden’s nomination, as various Democratic constituencies engage in delicate, behind-the-scenes jockeying for their favored candidates. Biden has promised to formally choose his nominee by month’s end.

Justice Stephen G. Breyer’s announcement last month that he would retire, but not until the Supreme Court term ends this summer, has created an unusually long time for Biden to nominate a candidate and the Senate to confirm her.

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Well before there was a vacancy on the Supreme Court, Clyburn, a top House Democrat, has been mounting a campaign on behalf of Childs, a judge from his home state of South Carolina. Many progressives would prefer Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit — widely perceived as the more liberal pick — though they have so far been quieter about saying so.

In an interview, Clyburn dismissed criticism of Childs’s record on labor, also pointing to her work for the Workers’ Compensation Commission. “Look at her record as a workers’ comp judge, and tell me she’s not pro-worker,” Clyburn told The Washington Post.

As a workers’ compensation commissioner in South Carolina, Childs effectively settled concerns of female workers of color about their treatment and lack of promotion, according to Gilda Cobb-Hunter, a Democratic South Carolina state lawmaker supportive of Childs.

“Quite frankly, her work as a workers’ compensation commissioner is why I worked so hard to make sure she was elected to the circuit bench,” Cobb-Hunter said. “As a strong labor supporter here, I have absolutely no concerns about Judge Childs or her attitude toward workers.”

She said she could not speak to Childs’s work in private practice, but added that South Carolina union leaders would have likely raised concerns had her record been hurtful to workers. “Michelle is a fair person, always has been,” Cobb-Hunter said. “There’s a reason she is so well-liked by members of both parties.”

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The prospect of different factions of the Democratic Party openly backing different potential nominees could create a headache for Biden, disrupting progress — the Supreme Court vacancy — that would otherwise be a unifying event for the party.

At issue is Childs’s work at the law firm Nexsen Pruet Jacobs & Pollard in Columbia, S.C., where she worked between 1992 and 2000. The American Prospect, a left-leaning publication, highlighted Childs’s work defending beachwear retailer L & L Wings in a sexual harassment suit, among other cases. The publication also pointed to Nexsen Pruet’s criticism of the Pro Act, a unionization bill backed by the White House.

Defenders of Childs have hit back. Victoria L. Eslinger, senior counsel at Nexsen Pruet, said in an interview that criticism of Childs’s record misses the fact that while at the firm, she also worked on behalf of workers in cases related to race discrimination, sex discrimination, disability-related discrimination and the Fair Labor Standards Act.

Many of these cases do not show up in court records, Eslinger said, because they were settled before the plaintiffs filed a lawsuit.

“She was very enthusiastic about our plaintiff cases,” Eslinger said. “If she had a client, she would represent a client to the best of her ability. ... She did not have a preference for employers. She is a person who always, always embraced plaintiff cases.”

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Some labor groups and liberal lawmakers are, for now, speaking in general terms about their desire for Biden to select a Supreme Court pick supportive of unions, without singling out Childs. Sen. Bernie Sanders (I-Vt.) said in an interview that Biden should pick a justice “who understands the plight of workers,” but said he had not yet reviewed Childs’s record.

Reps. Andy Levin (D-Mich.) and Mondaire Jones (D-N.Y.) are circulating a letter to other House Democrats urging Biden to use the Supreme Court vacancy to “voice our strong support for the nomination of someone who will put workers first.” Spokespeople for Levin and Jones declined to comment on whether they believe Childs matches that description.

But that circumspect approach is not universal.

Larry Cohen, former president of the Communications Workers of America, said there “is widespread concern” in the labor movement about Childs’s record, citing conversations he has had with union leaders this week. Cohen is now at Our Revolution, a liberal group affiliated with Sanders.

“Her labor record — her years as a management-side lawyer — definitely paint her as somebody who could just as easily be a Republican and certainly has no record supporting workers’ rights,” Cohen said. “This is of great concern to many of us. ... She spent years on the wrong side.”

For now, Biden and senior aides are continuing to review the pool of potential nominees. The president is also putting a team of advisers in place for what is likely to be a contentious confirmation process regardless of who is nominated. The White House is formally tapping three outside advisers, headed by former senator Doug Jones (D-Ala.), whose selection as a guide for the nominee was made public this week.