WASHINGTON ― Even in the midst of the coronavirus pandemic, the White House and Senate Majority Leader Mitch McConnell (R-Ky.) are still focused on confirming more judges ― and if they get their way, they’ll soon be filling a seat on the nation’s second-most powerful court with a 37-year-old guy who was rated “not qualified” to be a judge.
President Donald Trump announced Friday that he plans to nominate Justin Walker to the U.S. Court of Appeals for the District of Columbia Circuit. It was just six months ago that Senate Republicans confirmed Walker, then an associate law professor at the University of Louisville, to the U.S. District Court for the Western District of Kentucky. That’s a pretty quick turnaround for a promotion, particularly since Walker earned a rare and embarrassing “not qualified” rating from the American Bar Association.
Walker “does not presently have the requisite trial or litigation experience” to be a federal judge, the ABA’s Standing Committee concluded in a July review.
The nonpartisan ABA, which thoroughly reviews each of a president’s judicial nominees, typically requires that someone chosen for a lifetime court seat have at least 12 years of experience practicing law. It’s not an automatic disqualifier, though, if a nominee has other substantial trial or courtroom experience. Walker falls short on both counts.
“Mr. Walker’s experience to date has a very substantial gap, namely the absence of any significant trial experience,” the ABA found. “Mr. Walker has never tried a case as lead or co-counsel, whether civil or criminal. ... In addition, based on review of his biographical information and conversations with Mr. Walker, it was challenging to determine how much of his ten years since graduation from law school has been spent in the practice of law.”
Every Senate Republican present voted to confirm Walker to the Kentucky district court, despite his abysmal ABA rating. No Democrats present voted for him.
The question remains, why is Walker already getting nominated to a more powerful seat and when he’s already been rated unqualified for the job? One reason is obvious: McConnell wants him confirmed. He knows Walker’s grandfather, has known Walker since he was in high school, and he recommended him to the White House last year, calling him “unquestionably the most outstanding nomination that I’ve ever recommended to Presidents to serve on the bench in Kentucky.”
McConnell has no plans to slow down judicial confirmations, either, despite the coronavirus pandemic and presidential-year politics cramping the Senate’s ability to meet for business.
“Of course, we will go back to judges,” McConnell said in a March 31 interview on the Hugh Hewitt radio show. “My motto for the rest of the year is ‘Leave no vacancy behind.’”
Supreme Court Justice Brett Kavanaugh wants Walker confirmed, too. Walker clerked for Kavanaugh when he was on the D.C. Circuit Court of Appeals. When Kavanaugh was nominated to the U.S. Supreme Court in 2018, Walker went out of his way to defend his former boss against credible allegations by Christine Blasey Ford that he sexually assaulted her in high school. He did more than 70 media interviews challenging Ford’s statements.
“She may believe that assailant was Brett Kavanaugh,” Walker said in one Fox News interview in September 2018. “I believe she’s mistaken.”
McConnell and Kavanaugh flew to Kentucky together last month to honor Walker at his investiture, a ceremonial signing-in of judges. McConnell recessed the Senate to make the trip, and both he and Kavanaugh spoke at the event.
It’s hard not to see Walker’s ascension as a “thank you” from the powers that be for publicly defending Kavanaugh amid his confirmation hearing. Walker, like Kavanaugh, is a member of the Federalist Society, the conservative legal group that’s been feeding Trump the vast majority of his appeals court picks. McConnell and Trump have been focused on filling vacancies on appeals courts because, for all the attention the Supreme Court gets, the nation’s 12 appeals courts have the final say in more than 99% of federal cases.
There’s a pattern to these judicial nominees, too: They tend to be young and conservative, with records of being anti-abortion, anti-LGBTQ rights, anti-voting rights and opposed to the Affordable Care Act. Walker is no different. He has called the Supreme Court’s decision to uphold the health care law “catastrophic” and “indefensible.”
Walker’s nomination to the D.C. Circuit is “in part” appreciation for his help with Kavanaugh’s confirmation, speculated Carl Tobias, a University of Richmond law professor and expert in judicial nominations. But it’s also a gift to McConnell, who has made judicial confirmations his priority and helped Trump confirm two Supreme Court justices, a record 51 appeals court judges and 138 district court judges so far. All are lifetime seats.
“It’s a thank you to Mitch McConnell for helping fill all the appeals court vacancies with extremely conservative young judges who will serve for decades on courts of last resort for 99% of cases in the federal system,” Tobias said. “It also reflects the outsize role of [Federalist Society executive] Leonard Leo and the Federalist Society and all their supporters who want to make the appeals courts more conservative.”
It's a thank you to Mitch McConnell for helping fill all the appeals court vacancies with extremely conservative young judges who will serve for decades on courts of last resort for 99% of cases in the federal system. Carl Tobias, University of Richmond law professor and judicial nominations expert
Progressive groups have criticized the White House for nominating Walker, both because of his lack of experience and the timing of his nomination.
“Justin Walker would be wholly unsuitable and unqualified for one of our nation’s highest appellate courts at any time, but his nomination is especially egregious now in the middle of a national public health crisis,” said Marge Baker of People for the American Way, a progressive advocacy group. “Walker’s hostility to affordable and accessible health care, combined with the power he would have as a judge on one of our most influential federal courts, is a potentially deadly combination in the midst of the current pandemic.”
“The country needs emergency relief now,” said Brian Fallon of Demand Justice, a judicial advocacy group, “not more extremist judges who will vote to overturn the Affordable Care Act and take away health care for millions when they need it most.”
At the moment, with Congress empty amid the pandemic, it’s not clear when or how the Senate will proceed with confirming Walker this year. His hearing would require committee members to be in attendance, along with Walker and his guests. And typically, as it gets closer to November in a presidential election year, Congress empties out as lawmakers focus on reelection campaigns.
A McConnell spokesman deferred to the Senate Judiciary Committee for any news on the timing of Walker’s potential confirmation hearing.
A spokesman for Sen. Lindsey Graham (R-S.C.), chairman of the committee, did not respond to a request for comment.
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