SC’s 4th Circuit Judge Floyd signals intent to semi-retire, leaving vacancy for Biden

Henry Floyd, a judge on the U.S. 4th Circuit Court of Appeals, has signaled his intention to step down from being a full-time judge and go on senior status.

“I’m looking forward to slowing down a little bit,” Floyd said genially in a brief interview with The State Monday morning. He declined further comment.

That means that President Joe Biden would have the opportunity to nominate a judge, likely from South Carolina, to replace Floyd on the influential appeals court while Democrats hold a narrow margin in the U.S. Senate, which approves federal judges.

U..S. District Judge Michelle Childs of Columbia has been talked about as a possible candidate to move up. If Childs or another South Carolina federal judge were to be nominated, that would set off a scramble for Biden to nominate another federal judge to the district trial bench.

Buzz about Floyd’s departure was being talked about by those in federal legal circles late last week and over the weekend.

The federal circuit courts, including the Richmond-based 4th Circuit, are the nation’s second-highest judicial forums, one step below the U.S. Supreme Court and one step above the state-based federal district courts. The 4th Circuit covers South Carolina as well as North Carolina, Maryland, Virginia and West Virginia.

The nation’s federal circuit courts are regarded as a stepping stone to the U.S. Supreme Court.

Sources told The State that Floyd wrote a letter to Biden last week saying he intended to go off full-time status and go on senior status. A judge on senior status can have a reduced case load if they wish.

At this time, there are 15 judges including Floyd on the 4th Circuit.

In 2014, Floyd made national news when he authored a trailblazing 4th Circuit Court decision ruling that same-sex couples have a constitutional right to marry.

In a widely-quoted paragraph of that 63-page opinion, Floyd wrote, “We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.”

Floyd, 73, who grew up in Pickens and is said to be a good friend of U.S. Sen. Lindsey Graham, R-S.C., has been a member of the South Carolina House and a state circuit court judge. He was named a federal judge by President George W. Bush in 2003. In 2011, President Barack Obama nominated him to the 4th Circuit.

University of Richmond law school professor Carl Tobias, who studies the 4th Circuit and its decisions, said, “Judge Floyd has played a critical role on the 4th Circuit. He has authored several incisive opinions in high-profile cases. One was the marriage equality opinion.

Another more recent case, Tobias said, “was that of Gavin Grimm, the transgender student, who successfully challenged the Gloucester County School Board’s policy as discriminatory. Floyd affirmed the lower court ruling and the defendants appealed twice to the U.S. Supreme Court, which refused to accept the appeal.”

Tobias also noted that Floyd, when a district judge, also wrote an important ruling finding that an alleged terrorist, Jose Padilla, an individual detained by the Bush administration, was entitled to the right of habeas corpus — or to force the government to make a showing that there is justification for holding someone behind bars.

“To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition, but it would also be a betrayal of this nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties,” Floyd wrote in that case.

Tobias said he considers Childs the front-runner to be nominated for Floyd’s seat because she “enjoys the strong support” of House Majority Whip Jim Clyburn, D-Columbia.

“She has served with distinction since President Obama appointed her,” Tobias said.

Usually, senators play a major role in suggesting to a president who a suitable nominee might be.

Graham and U.S. Sen. Tim Scott, R-S.C., are Republicans, so Clyburn is likely to play an outsized role in who Biden’s nominee might be, Tobias said.

Biden also gives Clyburn, who made a crucial endorsement for him in the 2020 Democratic primary, much credit for him becoming the Democratic nomination for president and eventually, wresting the presidency from former President Donald Trump.

This story was originally published October 4, 2021 at 11:29 AM.