ADVERTISEMENT

Democrats Blast McConnell-Backed Circuit Court Pick 

Democrats Blast McConnell-Backed Circuit Court Pick 

(Bloomberg) -- Democrats on the Senate Judiciary Committee said a federal district court judge who is allied with Senate Majority Leader Mitch McConnell and Supreme Court Justice Brett Kavanaugh is too biased and inexperienced to sit on the federal appeals court that’s been a launching pad for future Supreme Court justices.

Justin Walker came under fire repeatedly at his confirmation hearing Wednesday for a seat on the U.S. Court of Appeals for the District of Columbia. Democrats pointed to his past comments criticizing a Supreme Court decision on the Affordable Care Act, his relatively young age and his brief experience -- six months -- as a judge.

“In his short time on the bench, Judge Walker, just 37 years old, has had virtually none of the experience one would expect of a district court judge before elevation to the circuit,” said Senator Dianne Feinstein of California, the top Democrat on the committee.

Senator Dick Durbin, an Illinois Democrat, was more blunt about the nominee, who first met McConnell when he was a high school student in Louisville, Kentucky, where the majority leader has long resided.

“We’re considering the confirmation of a 37-year-old family friend of Senator McConnell’s for the second highest court in the land,” Durbin said.

Yet Walker drew wide support from Republicans on the panel for his views on the role of judges and experience on the lower court, signaling the panel will likely favorably recommend him within weeks to the full Senate, where Republicans govern with a 53-47 majority. With Democratic opposition consolidating, Walker’s nomination promises to be politically difficult and has potential to be the year’s most controversial court confirmation, short of any future high-court vacancy.

Defending ‘Originalism’

At the hearing, Walker said that if confirmed he will draw on his experience on the bench, as well as time practicing law for national and regional law firms. He said that as a judge he will adhere to principles of “originalism,” a philosophy in which judges follow closely the original intentions of those who drafted a law, “rather than inserting a judge’s political opinions.”

Trump nominated Walker to the D.C. Circuit Court in April at McConnell’s urging, shortly after he was sworn in as a U.S. District Court judge for the Western District of Kentucky. Walker was confirmed by the Senate to that post in October along party lines. If confirmed, he would be placed on an appellate court seen as the second most powerful court in the U.S. and a possible stepping stone the Supreme Court. On the appeals court, he would replace retiring Judge Thomas B. Griffith.

Walker got a boost earlier this week when the American Bar Association gave him a “well qualified” rating for the Circuit Court judgeship after he was deemed “unqualified” when he was nominated for the lower court. He earned the lower rating in part because the ABA said he had no trial experience, but this time the lawyers’ association said his experience as a law clerk, law professor and district judge merit a stamp of approval.

McConnell Reshapes Courts

McConnell’s move to get him onto the circuit court underscores the majority leader’s effort to reshape the federal judiciary by helping confirm conservative-leaning judges. Since President Donald Trump took office, the Senate has confirmed two Supreme Court justices, 51 appellate court judges and 138 district court judges.

The majority leader has benefited from a rule change under former Democratic Majority Leader Harry Reid, who unilaterally reduced the number of votes needed to advance appellate and district court nominees to 51 votes instead of 60. That change could make it possible for Walker to win confirmation.

Twice McConnell has used the same hard-line partisan approach to change the rules. In 2017 the GOP lowered the vote threshold for Supreme Court nominees to 51, a change that helped confirm Supreme Court Justices Neil Gorsuch and Kavanaugh.

Walker’s work on the district court has been in the news in recent weeks. In April, he ruled that Louisville Mayor Greg Fischer couldn’t prevent a church in the city from holding drive-in style religious gatherings on Easter, a directive that was part of a social distancing order. In his ruling, Walker said the mayor “criminalized the communal celebration of Easter” and that it was unconstitutional.

Lauding Kavanaugh

In March, he attracted notice when McConnell and Kavanaugh attended his investiture to the lower federal court, after McConnell recessed the Senate for the weekend while the House worked on coronavirus response legislation. Walker, an active member of the conservative Federalist Society who repeatedly went on television to defended Kavanaugh during his contentious 2018 confirmation hearings, vowed at the ceremony to defend “Brett Kavanaugh’s America.”

Democrats asked about those comments at the confirmation hearing, as well as a 2018 opinion article in which Walker called the Supreme Court’s 2012 ruling upholding the Affordable Care Act “an indefensible decision.” In that decision, Chief Justice John Roberts sided with a 5-4 majority in ruling that the law’s mandate that people acquire health insurance or pay a tax penalty was a legitimate use of Congress’ taxing power.

“You haven’t hidden your contempt for the Supreme Court’s decision on the Affordable Care Act,” said Senator Patrick Leahy, a Vermont Democrat.

Walker said he wrote his op-ed before becoming a judge, and that he recognized the decision, National Federation of Independent Business vs. Sebelius, as precedent-setting.

“NFIB is a binding precedent and I would absolutely follow it fully and faithfully,” Walker said.

As for his defense of Kavanaugh and other remarks he made at the investiture ceremony, Walker said they reflected his strong view that “originalism” is the sound approach for judges to use in guiding their decisions.

McConnell Intern

Walker, who was raised by a single mother and whose grandfather, Frank Metts, was once Kentucky transportation secretary, served as an intern in McConnell’s office when he was a student at Duke University. He later clerked for Kavanaugh when he was a judge on the D.C. Circuit Court and also for Supreme Court Justice Anthony Kennedy. Walker also has worked as a speechwriter, including for former Defense Secretary Donald Rumsfeld.

Walker has been a part-time professor at Brandeis School of Law at the University of Louisville, and was previously a partner of counsel at Kentucky firm Dinsmore & Shohl LLP. He was also an associate at Gibson, Dunn & Crutcher.

He graduated with honors from Harvard Law School in 2009, and also graduated with honors from Duke University in 2004.

©2020 Bloomberg L.P.