The Senate Judiciary Committee heard testimony Wednesday morning as part of the confirmation hearing for Justin Walker, a 37-year-old federal judge backed by Senate Majority Leader Mitch McConnell for a seat on the most powerful appeals court in the country.
The nomination exemplifies McConnell’s enduring pledge to make the confirmation of judges his top priority, and infuriates Walker’s critics who say he is unqualified in part because he only graduated from law school a little more than a decade ago. They are opposed to positions he has taken on the Affordable Care Act as well as his defense of then-Supreme Court nominee Brett Kavanaugh.
McConnell, a Kentucky Republican, has spearheaded Walker’s meteoric rise in the judiciary by pushing him for the United States Court of Appeals for the District of Columbia, the circuit that has jurisdiction over federal agencies and often hears some of the most consequential issues of the day.
The nearly three-hour hearing went relatively smoothly, with Chairman Lindsey Graham, a South Carolina Republican senator, saying at its conclusion that Walker “acquitted himself well” during the proceedings and thanking senators on the panel – some of whom attended virtually.
Democrats spent most of the hearing questioning Walker’s experience and pointing to past comments he’s made that were critical of the Supreme Court and its 2012 Affordable Care Act decision. The panel’s Republicans, meanwhile, heaped praise on the judge while also quizzing him on his views on different constitutional provisions.
At one point, Sen. Amy Klobuchar, a Minnesota Democrat, brought up an opinion piece Walker penned two years ago critical of the Obamacare decision, asking if he still holds the views expressed in the piece.
“Senator, the statement I made was made as an academic and as a private citizen engaging in matter of public concern,” Walker replied, “and my role now as a judge is not to give a thumbs up or a thumbs down to particular Supreme Court precedence.”
As the hearing unfolded, both McConnell and Senate Minority Leader Chuck Schumer addressed it in statements on the Senate floor, with the majority leader calling Walker an “impressive individual” and urging the committee to approve his nomination.
Schumer, a Democrat from New York, slammed the committee in his statements, saying it would “waste precious time” by holding the hearing amid the coronavirus pandemic, and called Walker “McConnell’s protégé.”
At the start of Wednesday’s hearing, Republican Sen. Rand Paul of Kentucky, introduced the nominee to the panel, saying that in Walker’s “short time as a district judge he has shown an unwavering fidelity to the Constitution.”
During opening statements, Democrats on the committee also blasted McConnell for focusing on the nomination amid the pandemic, with Sen. Dick Durbin of Illinois laying out a “lengthy” list of things he said the panel could be doing instead to address the crisis.
“We’re in the middle of one of the greatest public health crisis in the history our nation. We’re sitting in a committee with jurisdiction in so many critical areas when it comes to this crisis and instead Sen. McConnell is unwilling to set aside his wish list fulfilling the courts,” Durbin said. “The American people deserve better.”
McConnell’s ‘judicial all-star’
After being sworn in, Walker, who had removed the face mask he was wearing, delivered a brief opening statement thanking McConnell and Paul for their support as well as members of his family and President Donald Trump for the nomination.
The DC appeals court is considered a breeding ground for future Supreme Court justices. Chief Justice John Roberts served there as well as Justices Clarence Thomas, Ruth Bader Ginsburg and Kavanaugh.
It was only last fall that the Senate confirmed Walker for his current post as a federal judge in Kentucky in a party-line 50-41 vote, despite drawing a “not qualified” rating from the American Bar Association in part due to his lack of judicial experience.
Tuesday, the group cited Walker’s experience on the federal bench and rated him “well-qualified” for the appeals court spot.
McConnell has called Walker a “judicial all-star.”
“I think you cannot credibly argue that Justin Walker is not a judicial all-star,” the majority leader told The Washington Post last month. “I thought it might be a good idea to go outside the Beltway… There are plenty of DC lawyers that salivate over this job.”
In early March, as coronavirus fears began to grip the country, McConnell and Kavanaugh traveled to Kentucky to attend Walker’s formal investiture for his current seat on a District Court in Kentucky.
Walker noted that as an 8-year-old he remembered a campaign sign for McConnell in his front yard.
“It has been extremely important to me that Kentucky’s senior senator is Mitch McConnell,” Walker said.
He also gave a rousing speech outlining the judicial philosophy he shares with his mentor.
“At the heart of a judge’s every case, is the separation of powers,” Walker said.
“That’s because every case requires a judge to respect his limited role in our Constitution’s structure, and when at issue, to observe the limits our people put on Congress, and the president and the administrative state,” he said.
Walker ended with a flourish: “Judges at their best vindicate those limits and today I swore to respect those limits for the rest of my life,” he said.
The two celebrated with a fist bump.
Democrats on the Senate Judiciary Committee asked Graham last week to delay the hearing and instead focus on matters directly related to the coronavirus pandemic. “Now is not the time to process routine judicial nominations,” the letter read.
‘Nothing deplorable’ about defending the Constitution
Walker directly addressed the ABA’s rating, calling the organization out by name.
“I want to thank my nomination’s opponents, including the American Bar Association,” he said in comments that ringed similar to a campaign. Conservatives have criticized the group, saying it tends to favor liberals and is biased against certain candidates.
“Thank you for serving as an enduring reminder that although my legal principles are prevalent, they have not yet prevailed,” he said.
“And although we are winning, we have not won, and although we celebrate today, we cannot take for granted tomorrow or we will lose our courts and our country to critics who call us terrifying and who describe us as deplorable,” he added.
The use of the word “deplorable” had more than a hint of politics. Hillary Clinton was widely criticized in 2016 for comments in which she said “half” of Trump’s supporters are “deplorables.” She later said she regretted the comment.
“Well my friends, there’s nothing terrifying about the original meaning of our Constitution and there is nothing deplorable about defending it,” Walker said.
Kavanaugh and Obamacare
At the investiture, Walker saved his most lavish praise for Kavanaugh who hired him in 2010 as a clerk when he served on the same DC-based appellate court before his elevation to the Supreme Court.
During Kavanaugh’s controversial confirmation hearing, Walker was one of his most constant supporters in print and over the air waves.
“Justice, Kavanaugh what can I say,” Walker joked at the investiture, “that I have not already said on Fox News?”
But then he got serious.
“You are like St. Paul, hard pressed on every side but not crushed. Perplexed but not in despair. Persecuted but not abandoned, struck down but not destroyed. Because in Brett Kavanaugh’s America we will not surrender while you wage war on our work or our cause or our hope or our dream.”
And Walker nodded to retired Supreme Court Justice Anthony Kennedy who was his boss for a clerkship from 2011-2012 but had been unable to travel to the event. It was during Walker’s term at the court that Chief Justice Roberts sided with the liberals on the bench to uphold the Affordable Care Act under Congress’ taxing power.
Walker said that Kennedy was “as kind and decent a man as I have ever met.”
He told the audience, the “greatest words you can hear from Justice Kennedy, are ‘you’re hired.”
And then, flicking to the health care decision, Walker said: “The worst words are: the Chief Justice thinks this might be a tax.”
The comment elicited nervous laughter from the audience as it realized Walker was referring to the health care decision.
“Justin Walker is in every way the wrong nominee at the wrong time for the D.C. Circuit,” said Marge Baker, executive vice president for policy and program of the liberal group People for the American Way. “In the middle of a pandemic, the idea that Mitch McConnell would prioritize the advancement of a demonstrably anti-health care judicial nominee is outrageous,” she said.
Easter services ruling
Walker’s critics are also seizing on an opinion he wrote in April, sitting as a district court judge. Walker issued a temporary restraining order blocking Louisville Mayor Greg Fischer from forbidding drive-in Church services on Easter Sunday.
Out of health concerns related to Covid-19, the mayor had said, “We are not allowing churches to gather, either in-person or any kind of drive-thru capacity.”
Louisville’s On Fire Christian Center, Inc sued.
Before the full briefing, Walker acted, issuing the temporary restraining order in an opinion loaded with references to religious persecution.
“On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” Walker wrote.
“That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion,” he continued.
Walker called the mayor’s decision “stunning” and unconstitutional.
“Walker’s opinion is what you would expect from someone rated ‘Not Qualified’ by his peers – ignoring the facts and evidence in order to try to score political points,” Christopher Kang, general counsel for Demand Justice, a group opposed to Trump’s nominees, told CNN.
Kang said that Louisville had not actually banned the drive-in church services.
“Walker – like many other Trump judges – seems to relish using partisan judicial opinions to audition and bolster his standing among conservative extremists,” Kang said.
Mike Davis, who runs the Article 3 Project in support of Trump’s nominees, defended Walker’s actions.
“As Judge Justin Walker correctly ruled, governments have a lot of latitude to deal with the coronavirus crisis-but they cannot act arbitrarily or single out believers, ” he said.
McConnell was quick to tweet about the opinion and back Walker as well.
“Grateful for this strong, eloquent ruling defending Kentuckians’ religious liberty from Judge Justin Walker, @POTUS’s outstanding nominee for the D.C. Circuit. Of course church parking lots cannot be singled out with unfair standards that differ from other establishments.”
In papers recently submitted to the Senate, Walker said he was originally contacted back in 2018 to see whether he’d be interested in Kavanaugh’s former seat on the appeals court.
The seat ultimately went to Judge Neomi Rao. Walker was later nominated and confirmed for the lower court seat.
But in late January, Walker met with Trump, along with McConnell, in anticipation of a another vacancy back on the appeals court.
When the vacancy came available, McConnell again pushed for Walker.
This story has been updated with additional development’s Wednesday.
CORRECTION: This story has been updated to correct the spelling of Sen. Lindsey Graham’s name.