chevron-down Created with Sketch Beta.
February 17, 2023

Keynote by the Honorable J. Michelle Childs

Diversity is essential for maintaining the judiciary’s monumental role in shaping our union.

By: Namosha Boykin and Kelechukwu Chidi Onyejekwe

With a standing ovation even before she began to deliver the 2022 keynote address--and another standing ovation after she completed the address--the Honorable J. Michelle Childs gave what proved to be the most inspiring and rousing speech of the Summit, if not of all keynotes this decade.  Her common touch—one of the reasons she is one of the most well-liked judges in the country—came through, not just during the speech but when she participated and mingled as an audience member during the other sessions of the summit. “I have heard cases in libraries, police stations, fire houses, county council rooms,” she began.  It is fitting that she led “the conversation about some of the wide-ranging opportunities and challenges that judges face today in an evolving world from the time a judge is nominated or elected until the time when she hears her last case.” Central to these challenges is the oath, according to Judge Childs.

The Judge’s Oath

The fundamental basis for interpreting the law free of influence begins with the oath of office, “an awesome commitment.” She offered three reasons for this.  “First, it reminds all judges that their principal responsibility is to execute their assigned duties without fear and to the best of their ability.”

“Second, the oath emphasizes that judges and civil servants do not swear allegiance to friends or foes, particularly judges swear allegiance only to the U.S. Constitution.”

“And lastly, it binds all judges in unity and allegiance to the principles of equality and justice for all.” Judge Childs explained that the “judicial oath had newfound meaning through each of her past confirmation and election processes.”

The increasingly partisanship in judicial confirmations, being shunned by the public for courageous decision making, being targeted by detractors or even litigants, and a civics environment that needs improvement for the public to better understands that judges are not politicians, are some of the major issues that today’s judge must face in discharging the oath.

The confirmation processes                                       

The confirmation process was intended to give the country an “in-depth look at a nominee,” including their intellect, judicial temperament, and suitability for rendering impartial decisions.  Senators study the nominee to discharge their constitutional obligation to the President. In this process, “the nominee assures senators and the public of their ability to be fair and impartial.” Unfortunately, Judge Childs explained, the system has broken into “a theatre for politicians to air their political grievances.”

It was not always like this. Justice Antonin Scalia was confirmed with 98 votes to zero and Justice Ruth Bader Ginsburg with 96 to three votes. Judge Childs illustrated the slide to partisanship by offering her personal experience.  “I suppose I came close to the bipartisan levels in the 1980s and 1990s with a voice vote in 2010. So, I'll consider that unanimous. And then she was one of the most bipartisan votes of any judicial nominee of President Biden at 64 to 34.” High partisanship comes with a loss of privacy for nominees and their families. She explained:

“Now, when I initially prepared for my confirmation hearings back in 2010, I just reviewed a few cases. I read the latest Supreme Court decisions and then just looked at trending legal issues in the media. Thankfully, my confirmation hearing was based on the merits of the candidates, like our prior work experience, intellect, and judicial temperament. However, the last time was much different.

“I had even more extensive background checks from the FBI, the ABA, the White House, the Department of Justice, and of course the public arena and the press.” That’s not all. She had “an extensive senate judicial questionnaire, several prep sessions from lawyers with many perspectives, and endless study about current legal issues.”

“The confirmation hearing and over 200 questions for the record presented after the confirmation hearing from senators who were there, who had the chance to ask questions and those who were not there who wanted to ask questions, and of course protection this time by the U.S. Marshal’s Service for the many reporters that slept outside of my house.”

A diverse judiciary is essential for our democracy.

A judge must decide each case on its merits based on the record and arguments. Appellate judges, Judge Childs maintained, must remain open-minded, consulting with colleagues to prepare well-reasoned and understandable decisions based on the governing law. Decisions, of course, must adhere to jurists’ allegiance to the Constitution, its amendments, and the laws of the United States. For Judge Childs, it is not necessary that a judge subscribe to a particular judicial philosophy.  But an effective judiciary must reflect the population it serves. “Our system of justice is better served with a diversity of talented judges embracing different viewpoints and bolstering the perception of a fair and impartial judicial system.”

Diversity is not only race and gender, but a person's background and lived experiences, which informs their thinking and being.  She lauded the diversity of recent nominees: public defenders, civil rights attorneys, and historic firsts across race, gender, and sexual orientation. “Today the number of black women who serve as appellate judges has doubled, including the first ever black woman Supreme Court  Associate Justice Ketanji Brown Jackson.” Diverse groups are grateful and proud for the informed perspective that group members lend to prevalent legal issues.  “In short, they feel seen and heard.”

“Do not let the only people in your pipeline be those who have tried the same path as you. If so, your reach will be deep, but it may not be broad enough to provide you all the perspectives you will need in making just decisions,” she cautioned.

Being shunned for a courageous action is a challenges judges must bear.

Judges cannot decide based on public sentiment. They are not activists. Nevertheless, painfully, elected judges have lost their judicial seats based on their rulings, despite upholding their oath to be fair and impartial jurists. Others have been shunned. Difficult as that may be, democracy depends on the rule of law and on judges being independent and courageous.

Public criticism has always been a constant force outside of the judiciary.  Judges will be shunned who follow their conscience in deciding the law contrary to public sentiment.  But courageous members of the judiciary played a leading role in establishing the civil rights that we enjoy today. Those judges were shunned by the public, the church, and even bar associations. Judge Childs gave the examples of judges in Alabama and South Carolina who refused to be bound by Plessy v. Ferguson, a segregationist decision that was subsequently vacated by Brown v. Board of Education. Those judges paid the price of being shunned. But in the end they were right and should be emulated.

Being targets of physical harm by detractors is unacceptable.

More troubling than being shunned is that judges have become personal targets by their detractors. Between fiscal years 2016 and 2018, the total reported threats nearly doubled, from 2,357 to 4,542, according to a U.S. Marshal’s Service report. The total has remained above 4,000 every year since, according to the annual report for the fiscal year 2021 — the latest year for which data are available.  Judges or family members have lost their lives or were the target of such attempts. After recounting the attempt on the life of Justice Brett Kavanaugh, she turned to the attack on Judge Esther Salas during which her son was killed and her husband wounded in their home.  Judge Childs urged everyone to support passage of the bipartisan Daniel Anderl Judicial Security and Privacy Act (which successfully passed in December 2022) to protect members of the judiciary.

Civic education is necessary for the public to better understand that judges are not politicians.

If judges champion increased civic education, the public will gain a greater understanding that judges are not partisan political actors. Judges are allowed to participate in extra judicial activities that help in the advancement of the law.  Judges have a moral obligation to contribute to society in the form of service to others and to our profession. Greater civic education can reverse the course of the eroding public confidence in our judiciary and constitution. Judge Childs cited a poll reporting that only twenty-five percent of Americans have a great deal of confidence in the Supreme Court, which is down eleven percent from 2021. This demonstrates that there is work to be done to restore public confidence in the judiciary.

Biographical information

Judge Childs, according to the conference documents, holds a B.S. in Management from the University of South Florida Honors College, a J.D. from the University of South Carolina School of Law, a Masters in Personnel and Employment Relations from the University of South Carolina’s Darla Moore School of Business, a Masters of Judicial Studies from Duke University School of Law, and an Honorary Doctorate Degree in Public Service from the University of South Carolina.

Before serving as a U.S. District Judge, Judge Childs served as a South Carolina At-Large Circuit Court Judge, which included responsibilities as the Chief Administrative Judge for General Sessions and the Business Court for the Fifth Judicial Circuit of Richland and Kershaw Counties.  Judge Childs also received gubernatorial appointments as a Workers’ Compensation Commissioner and the Deputy Director for the South Carolina Department of Labor, Licensing and Regulation’s Division of Labor.

Formerly a partner with the law firm of Nexsen Pruet, LLP, in Columbia, South Carolina, Judge Childs practiced in the areas of employment and labor law and general litigation.  She is very active with various local, state, and national bar organizations, as well as community organizations. She is the President-elect of the Federal Judges Association, a former Chair of the American Bar Association’s Judicial Division, and a former Secretary of the American Bar Association’s Labor and Employment Law Section.  She also serves as a fellow with the American Bar Association’s Litigation Section and its Committee on the American Judicial System.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Namosha Boykin

The Boykin Law Firm

Namosha Boykin is the Founder and Managing Attorney of The Boykin Law Firm.  She may be reached via email at [email protected]

Kelechukwu Chidi Onyejekwe

Office of the Territorial Public Defender

Kelechukwu Chidi Onyejekwe is the Appellate Public Defender at the Office of the Territorial Public Defender, United States Virgin Islands.