Senate confirms Childs, possible future Supreme Court pick, to DC Circuit

The Senate on Tuesday confirmed Judge J. Michelle Childs to the D.C. Circuit Court of Appeals, the nation’s second-highest court, giving President Biden a promising option to nominate to the Supreme Court should another vacancy arise.  

The Senate approved Childs by a vote of 64 to 34. Fifteen Republicans voted for the nominee. 

If Democrats lose control of the Senate in the midterm elections and Biden has a chance to fill another Supreme Court vacancy, Childs is a judge who could win bipartisan support.

Whether or not that happens, she will have an influential role on the D.C. Circuit, which now has five judges appointed by Democratic presidents and four appointed by Republicans.  

Senate Majority Leader Charles Schumer (D-N.Y.) praised Childs’s confirmation as a significant accomplishment.  

“It’s one of the most important votes we’re going to take all this year,” he said. “The D.C. Circuit is so important. 

“It’s probably the second-most important circuit in the country,” he added, noting the Supreme Court takes only about 75 cases a year. “So loads of decisions particularly those related to government and Congress and balance of power go through the D.C. Circuit.”

Childs was on Biden’s shortlist of potential nominees to the Supreme Court earlier this year after Justice Stephen Breyer announced his plans to retire.  

Childs, a U.S. district judge for South Carolina, had the strong support of Sen. Lindsey Graham (R-S.C.) as Biden mulled who to pick to replace Breyer.  

But Biden instead nominated Justice Ketanji Brown Jackson, who had the strong support of Democratic activist groups. Childs ran into opposition from labor leaders. 

Biden’s choice of Jackson over Childs angered Graham, who said he could have mustered 10 Republican votes for the South Carolina judge. Only three Republicans, Sens. Susan Collins (Maine), Mitt Romney (Utah) and Lisa Murkowski (Alaska) voted for Jackson.  

Sen. John Cornyn (R-Texas), an adviser to the Senate GOP leadership team who voted for Childs on Tuesday, said her confirmation to the D.C. Circuit positions her well for a future Supreme Court nomination.  

“It’s a pretty well-established pathway, but obviously it depends on a lot of circumstances we can’t guess about, but it probably doesn’t hurt her,” he said.  

Cornyn added that “it’s not the usual path” for a D.C. circuit nominee to come from a district court within another circuit’s jurisdiction.