By Andy Brack | You might have missed something pretty significant in the onslaught of national news – how two federal appellate judges making a mark on democracy have ties to South Carolina.
On Feb. 6, a three-judge panel at the U.S. Court of Appeals for the D.C. Circuit ruled against former President Donald Trump’s claim that he was immune from prosecution on charges he plotted to overturn the 2020 election. While the ruling surely will create more delay-motivated appeals from the Trump team, it also kickstarts one of four big criminal cases against the former president that has been frozen.
Among the jurists united in the ruling was U.S. Circuit Judge Karen L. Henderson, appointed to the appellate court in 1990, four years after being appointed a U.S. district judge in South Carolina by the late President George H.W. Bush, a Republican. While Henderson attended college and law school in North Carolina, she served in the S.C. Attorney General’s office from 1973 to 1983, eventually becoming deputy attorney general.
A more recent addition to the D.C. circuit court is U.S. Circuit Judge Michelle Childs, a Columbia lawyer who became a state circuit court judge in 2006. Four years later, she was appointed by former President Barack Obama, a Democrat, to serve at the U.S. District Court for the state. In 2022, just months after being one of three names floated as a candidate to replace U.S. Supreme Court Justice Stephen Breyer, President Joe Biden appointed her to the federal appellate bench in Washington, D.C., a court often considered second in prominence to the Supreme Court.
Along with Biden-appointed Circuit Judge Florence Pan, these judges unanimously ruled that Trump was not above the law in the case against him for actions related to the Jan. 6, 2021, insurrection at the U.S. Capitol.
“We cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power – the recognition and implementation of election results,” the judges wrote in the decision.
What’s important here is that two judges with a deep South Carolina background in supporting the rule of law were key in the ruling to support a basic tenet of American democracy – the separation of powers. They supported a fundamental strength of our form of government – that there are three equal branches of government, each with checks and balances to keep power distributed. If one branch becomes too laden with power, the others – and democracy – suffer.
“It is both unique and important that these two judges, both with strong South Carolina ties, appointed by presidents of two different parties, joined Judge Pan in a unanimous decision as to Trump’s immunity,” said Greenville political analyst Chip Felkel.
“This is not a partisan decision. It was a ‘mic drop’ that was thorough, succinct and to the point. It was a great example of the judiciary taking the proper steps, offering a well-reasoned and firm decision on a controversial topic.”
The bipartisan decision will make it difficult for Trump supporters to criticize with a straight face. South Carolina’s two Republican U.S. senators, for example, had great things to say about Childs, appointed by a Democrat, when she was being considered for the highest court in the land.
“She certainly has been received with great acclaim from South Carolinians on both sides of the aisle,” U.S. Sen. Tim Scott, R-S.C., said in 2022. “I think she has a strong record and would be a strong candidate.”
His colleague and vocal Trump supporter Lindsey Graham was even more forceful. He reached out to the White House in 2022 to share his backing.
“I can’t think of a better person for President Biden to consider for the Supreme Court than Michelle Childs,” he said then.
The rule of law won one this week. Let’s hope it stays on track.
Andy Brack is editor and publisher of Statehouse Report and the Charleston City Paper. Have a comment? Send to: feedback@statehousereport.com.
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