When President Biden reiterated his campaign pledge to appoint the first Black woman to the Supreme Court, following the announcement of Justice Breyer’s retirement, it was expected that Republicans would vehemently push back against any nominee from the Democrats. Yet, Senator Lindsey Graham (R-S.C.) was the first to endorse J. Michelle Child, while other prominent voices in the party called Biden’s vow “affirmative affirmative” pick. 

On Sunday, in an interview on CBS’s “Face the Nation,” the South Carolina Republican told moderator Margaret Brennan “[Childs] She’s highly qualified. She’s a good character… I cannot say anything bad about Michelle Childs. She is an awesome person.”

Graham went on to explain that he was supportive of qualified minority candidates being considered to replace Justice Breyer, “We make a real effort as Republicans to recruit women and people of color to make the party look more like America. Affirmative action is picking somebody not as well qualified for past wrongs.”

Here is where Senator Graham and most Republicans are mistaken. Claims of affirmative action are often dog whistles. That false understanding of unqualified hires as a result of affirmative action is only associated with people of color’s advancements. The assertion is that people of color are not qualified and affirmative action is a means to reward mediocrity. In actuality, white women are the number one beneficiaries of affirmative action, as reported by Time.

In the 2014 Cooperative Congressional Election Study, nearly 70 percent of the 20,694 self-identified non-Hispanic white women surveyed either somewhat or strongly opposed affirmative action, however, according to Vox, white women have also been the primary plaintiffs in the major Supreme Court affirmative action cases. 

By any means, an endorsement from Trump ally, Senator Lindsey Graham is concerning. A closer look into Childs’ experience could explain why the South Carolinian is receiving such bipartisan support from the Senator. The American Prospect reported that Childs worked for years defending employers accused in racial, gender, and other discrimination cases. Of the 25 cases registered by Bloomberg Law in which Childs participated during her time at the firm, 23 of those involved alleged employment discrimination or other employment-related civil rights violations regarding race and gender. 

A standout case, Greene v. Conseco Finance, shows Childs represented an employer accused of race and pregnancy discrimation. The plaintiff, a Black woman, alleged the company denied her a promotion and then terminated her because of her pregnancy. The jury sided with the plaintiff, awarding her $193,000 in damages after Childs withdrew. 

It was also revealed that many of Childs’ criminal justice rulings as a district court judge were eventually overturned on appeal by higher courts. Childs’ had thrown out a number of cases ranging from alleged excessive-force by law enforcement from inmates to wrongly or excessive sentences.

In another standout case, in 2017, the Fourth Circuit court found Childs’ “abused [her] discretion,” after dismissing a motion without so much of an evidentiary hearing. In the 2014 case, Gerald Decosta Whaley had been sentenced to 262 months in prison for selling marijuana, cocaine, and ecstasy with his brother. A year later, 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. 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.” 

Frankly, Childs’ consistent history of resistance to lenient sentencing and alleged abuse cases brought by prisoners would likely be alarming to a portion of Biden’s supporters. Both Biden and Harris tried to amend their tough-on-crime pasts during the election, and Childs’ as a nominee does not coincide with their initial campaign promises. And though Biden hasn’t officially announced a list of prospects, it is clear that Rep. James Clyburn (D-SC), who champions Childs the most, definitely has Biden’s ear. 

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