Republicans Prove They Can Focus During A Pandemic... On Confirming Judges

The Senate isn't passing bills on COVID-19 or racial justice. But Mitch McConnell's protege, Justin Walker, is about to get a powerful lifetime judgeship.

WASHINGTON ― As the nation grapples with a deadly pandemic and nationwide protests for racial justice, Senate Republicans are acting with urgency … to put Majority Leader Mitch McConnell’s protege into a lifetime seat on the nation’s second-most-powerful court.

The Judiciary Committee voted Thursday to advance Justin Walker’s nomination to the U.S. Court of Appeals for the District of Columbia Circuit. There’s nothing particularly pressing about filling this court seat; it’s not even vacant until September. But McConnell is personally invested in Walker’s ascent.

McConnell has known Walker, 38, since Walker was in high school. The senator recommended him to the White House last year for a seat on a U.S. District Court in Kentucky.

Republicans confirmed Walker to that seat last fall, despite the American Bar Association rating him “not qualified” based on his lack of experience (at the time, his resume included being an associate law professor and a former law clerk to then-Judge Brett Kavanaugh of the D.C. Court of Appeals). Walker has only been a district judge for a matter of months, but McConnell wants him to have a seat on the D.C. Court of Appeals, and the ABA said he is qualified this time.

Justin Walker, the nominee to be U.S. Circuit Judge for the District of Columbia Circuit, at his Senate Judiciary Committee hearing on May 6.
Justin Walker, the nominee to be U.S. Circuit Judge for the District of Columbia Circuit, at his Senate Judiciary Committee hearing on May 6.

Walker’s nomination was the Judiciary Committee’s first order of business when the Senate came back into session in early May after a six-week break due to the pandemic.

The panel held his confirmation hearing that week instead of holding hearings on any number of issues it has jurisdiction over related to the health and economic fallout from the coronavirus. The committee could, for example, have spent the last few weeks holding hearings that look at the health and safety of corrections staff and incarcerated people, changes in immigration policy tied to the pandemic or the spike in hate crimes against the Asian American community.

Instead, the committee met Thursday to vote out Walker’s nomination in a party-line vote. All that’s left is for the full Senate to confirm him, which could happen as soon as next week.

“It is warp speed,” said Carl Tobias, a law professor who holds the Williams Chair at the University of Richmond and is an expert on judicial nominations. “Especially given the compelling need for the Senate to address all of the horrible health and economic risks created by COVID-19 and all of the complications created by COVID-19 to have hearings, floor debates and votes.”

Sen. Mitch McConnell (R-Ky., left) chats with Justin Walker ahead of his Senate confirmation hearing.
Sen. Mitch McConnell (R-Ky., left) chats with Justin Walker ahead of his Senate confirmation hearing.
Caroline Brehman via Getty Images

Democrats strongly oppose Walker, who has come under fire for praising Kavanaugh for having written the “road map” for overturning the Affordable Care Act. Walker also described the Supreme Court’s decision to uphold the law as indefensible and catastrophic.

His remarks are particularly worrisome to supporters of the health care law as the D.C. Circuit Court is the main U.S. appeals court for issues of constitutional law, meaning a challenge to the ACA’s constitutionality could potentially come before him.

“Can anyone here say with a straight face that this 38-year-old individual with no practical courtroom experience and a few months on the job as a district court judge in the Commonwealth of Kentucky is the best person for this job? Anybody?” Sen. Dick Durbin (D-Ill.) asked in Thursday’s hearing, to silence. “He’s not, and we know it.”

“The nomination of Justin Walker is not only a personal favor to the Republican leader, it is a direct attack on the Affordable Care Act in the midst of a public health crisis in America,” Durbin added. “I oppose this nomination.”

The Leadership Conference on Civil and Hum­­­­an Rights — a coalition of more than 200 national civil and human rights organizations, including the NAACP and the Human Rights Campaign — also strongly opposes Walker’s nomination, characterizing him as “hostile to health care.”

“At this perilous time in our nation’s history, the Senate should maintain a laser focus on efforts to save lives and mitigate the devastating economic impact of COVID-19 on the American people,” reads the group’s April 27 letter to senators. “The Senate should not process judicial nominations — particularly those like Mr. Walker who seek to dismantle health care protections for vulnerable people — until the shock of the pandemic has been diminished.”

Walker said in his confirmation hearing that his past comments on the Affordable Care Act came before he was a judge and that he was talking about the legal analysis in the case, not the merits of the health care law itself.

Walker is all but certain to be confirmed.

Like so many of President Donald Trump’s circuit court nominees, Walker is a member of the Federalist Society, a conservative legal organization that has effectively been picking Trump’s judicial nominees for him. There is a clear theme to these court picks, too: They have records of being anti-LGBTQ, anti-abortion and anti-voting rights.

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