Names of SC judge, lawyer floated to succeed Michelle Childs on federal bench

Two names in South Carolina’s legal community are being floated to become the state’s next federal judge to replace Michelle Childs, who now sits on the District of Columbia Court of Appeals.

They are federal Magistrate Judge Jacquelyn Austin of Greenville, and Assistant U.S. Attorney Beth Drake of Columbia in the federal office’s civil division, according to sources in the state’s legal community.

Austin, 55, a Sumter native, has been a magistrate judge since 2011. Before, she was a business litigation lawyer with Womble Carlyle in Greenville. She is a 1996 graduate of University of South Carolina law school.

Drake, 59, has been with South Carolina’s U.S. Attorney’s office since 1994. In that office, she served as an interim U.S. attorney during a period where no presidential nominee had been confirmed for the office. From 1991 to 1994, she spent three years as an assistant prosecutor with the 5th Circuit Solicitor’s office, then operated under former solicitor Dick Harpootlian, now a state senator who represents part of Richland County. She is a 1987 graduate of USC’s law school.

Drake’s husband, prominent Democrat Dwight Drake, is an attorney and longtime lobbyist with Nelson Mullins.

Neither Austin nor Drake would comment for this article. It is not unusual for people who are under potential or real consideration for a presidential nomination to a federal post to decline comment.

Carl Tobias, a University of Richmond law school professor whose specialties include federal judicial appointments, said that President Joe Biden likely won’t nominate anyone to Childs’ empty judge seat until at least January.

That’s because the current Senate session is set to end, and a new session will begin in early January.

If Biden nominated anyone to the post, there would not be nearly enough time to get that person through the time-consuming process of being confirmed this year, Tobias said.

“He’d have to nominate them all over again next year,” Tobias said.

Biden has said he wants to put more diversity on the federal bench, and has especially looked at nominating more women and women of color. Austin is Black, and Drake is white.

Childs, who is Black, was nominated to District of Columbia Court of Appeals last year and confirmed in July. Her nomination was put on hold as she was considered for an open seat on the U.S. Supreme Court — a promotion pushed by House Majority Whip Jim Clyburn and Republican U.S. Sen. Lindsey Graham.

Biden nominated Ketanji Brown Jackson to the high court. She was confirmed as a justice to succeed retired Justice Stephen Breyer this year.

Known as the D.C. Circuit, the court is one of 13 federal regional courts of appeal and is considered the most prestigious, in part, because many U.S. Supreme Court justices have served on this court.

This story was originally published December 26, 2022 at 5:00 AM.