Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Tuesday, June 18, 2024 | Back issues
Courthouse News Service Courthouse News Service

Kavanaugh Protege Moves Closer to Taking DC Circuit Bench

Fifty-four days after Justin Walker fist-bumped Justice Brett Kavanaugh and Senate Majority Leader Mitch McConnell at the new district judge’s investiture ceremony, the 37-year-old Kentuckian is racing toward a seat on the D.C. Circuit.

WASHINGTON (CN) — Fifty-four days after Justin Walker fist-bumped Justice Brett Kavanaugh and Senate Majority Leader Mitch McConnell at the new district judge’s investiture ceremony, the 37-year-old Kentuckian is racing toward a seat on the D.C. Circuit. 

Walker cleared the latest hurdle at his Senate Judiciary Committee nomination hearing Wednesday, one of the last steps in the Trump administration’s crusade to rapidly pull him through the judicial ranks.

Democrats argue Walker is far from worthy of the lifetime appointment to the second highest court in the land, with just six months on the district court bench under his belt.

“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,” Senator Dianne Feinstein, D-Calif., said. “He has not presided over any bench or jury trials. He has written opinions in only 12 total cases.”

But Republicans praised the nominee, citing the American Bar Association on Tuesday ranking Walker well qualified. The ABA upped its ranking after telling the Senate last year that the nominee was not qualified for his district appointment.

The nomination is clouded in controversy, with D.C. Circuit Chief Judge Sri Srinivasan on Tuesday referring a request for investigation to another circuit court over possible ethics violations by McConnell and the retiring Circuit Judge Thomas Griffith, 65, appointed by President George W. Bush in 2005. 

The outgoing judge has denied facing political pressure to leave the bench, saying in an NPR interview on Tuesday that "the sole reason for my retirement” is his wife’s 2009 diagnoses with a "debilitating chronic illness.”

There was no mention of the pending investigation on Wednesday as Democrats focused on Walker’s position on the Affordable Care Act, while Republicans praised him for a recent ruling that blocked the city of Louisville from prohibiting drive-in church services on Easter to slow the spread of Covid-19. 

Feinstein took Walker head-on with questions on his position that the Affordable Care Act, commonly known as Obamacare, was an “indefensible decision.”

The top Senate Judiciary Democrat raised concern that his appointment would “exacerbate the health care crisis in this country” during the Covid-19 pandemic.

But Walker said he penned the op-ed as an academic and a citizen engaged in matters of public concern.

“I understand that my role now is different than my role then,” the nominee said, later assuring the panel that he understands that the Supreme Court ruling upholding Obamacare is binding. 

“As a judge it’s not my job to define policy. It’s my job to go where the law leads,” Walker said.

But asked by Senator Dick Durbin, D-Ill., to commit to recusing himself from all D.C. Circuit cases involving the Affordable Care Act, Walker declined, telling the panel that judges must “take every case case-by-case with an open mind.”

Facing harsh questions over his investiture speech in March as a district judge, Walker defended his comment that "the worst words are: 'The chief justice thinks this might be a tax,'" as “a bit of a tongue and cheek” alluding to his former boss, Justice Anthony Kennedy.

Before working for Kennedy, Walker clerked for Kavanaugh on the D.C. Circuit prior to the newest member of the high court filling Kennedy’s vacated seat. A former assistant law professor, Walker graduated from Harvard Law School a little more than a decade ago, and attended Duke University as an undergraduate. 

Democrats drilled the nominee on fiery political statements in the speech and Walker’s praise for Kavanaugh, whom he compared to St. Paul. 

The E. Barrett Prettyman U.S. Courthouse, home of the D.C. Circuit U.S. Court of Appeals and U.S. District Court for the District of Columbia. (Jack Rodgers/Courthouse News Service)

“Because in Kavanaugh’s America, we will not surrender while you wage war on our work, or our cause, or our hope, or our dream,” Walker said in March. 

Calmly brushing off Democrats’ concern over his impartiality and decorum, the nominee claimed that his words emphasized a strongly held value on strict constructionism. 

“I wasn’t trying to inject politics into my speech,” Walker said. “I was trying to push back against the politicization of the judiciary.”

After Kavanaugh administered the oath back in March and fist-bumped his former clerk — a sign of handshakes no longer being acceptable with Covid-19 cases on the rise — Walker said he wanted to thank the ABA, with a sly nod to his initial “not qualified” rating.

“I’m serious,” he said with a smile. “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.”

Senator Chris Coons, D-Del., on Wednesday asked Walker: “Who is we?”

Pointing to the ABA issuing a higher rating for his appeals court appointment, the nominee responded: “I was talking about those who approach judging with respect to the rule of law and the separation of powers.”

The ABA on Tuesday had explained its reversal in just less than a year on Walker’s qualification. 

“The Standing Committee’s rating was predicated on the nominee’s then-narrower litigation experience,” the ABA said, noting circuit judge qualifications focus more on legal scholarship, academic talent, analytical and writing abilities and “overall excellence.”

Senator Rand Paul, R-Ky., while introducing Walker at the outset of the hearing, said, “President Trump reached outside the Beltway to New York bubble to elevate a judge who is committed to our Constitution,” noting the outgoing Judge Griffith was the last appointee to the D.C. Circuit from outside that “bubble.”

The only senator known to have contracted Covid-19, Paul was one of many members who did not wear a mask during the hearing. 

Walker entered the large room — where senators, staff and press spaced out 6 feet apart and large supplies of hand sanitizer, Purell wipes and masks were available — wearing a blue surgical mask, but removed it to be sworn in and answer questions. 

Several senators opted to participate in the hearing by videoconference, while others, like Senator Cory Booker, D-N.J., said the process was rushed because the D.C. Circuit seat would not be vacated for another four months.

"And in those 118 days, thousands of Americans will die,” Booker said.

A spokesperson for Senator Feinstein on Tuesday declined to comment on the allegations that McConnell coordinated Griffith’s departure from the heavyweight appeals court to make room for Walker. 

But Senate Judiciary Democrats argued in a letter to Chairman Lindsey Graham, R-S.C., last week that the committee should focus on responding to the coronavirus in the Senate’s first week back in Washington while avoiding in-person meetings that “pose significant health risks for members, staff and witnesses.”

“But whether in-person or remote,” the letter continues, “hearings to consider lifetime appointments to the federal bench fall well outside these bounds.”

Graham, however, stressed Wednesday that while he felt there was “a lot to do related to the coronavirus,” filling judicial vacancies was “for the good of the nation.” 

The chairman made no reference to the party line criticism and pending investigation encircling the nominee.

Demand Justice, a liberal advocacy group, filed the request to investigate the outgoing Judge Griffith’s departure, arguing that McConnell’s involvement in the judiciary is “quite unprecedented” and gives rise to “significant ethical questions for the judges who heed his advice.”

Christopher Kang, chief counsel of Demand Justice, said Republicans pushing the nomination forward in the first week back since the Senate left Washington to prevent the spread Covid-19 bears additional concern due to limited public access.

“What does that say about how Republicans care so little about the health and safety of the American people that this is what they’re trying to do, that this is what their priorities are?” Kang said in an interview Tuesday.

Senate Majority Leader Chuck Schumer, D-N.Y., joined fellow Democrats Wednesday following the hearing in a digital rally hosted by Alliance for Justice called #StopWalker.

From the Senate floor Monday, the top Democrat levied harsh accusations about the majority party’s priorities.

"As we return to work under the cloud of crisis, Senate Republicans should concentrate on helping us recover from Covid-19, not confirming right-wing judges or protecting big businesses that threaten to put workers at serious risk," Schumer said.

Heavy criticism fell down on McConnell back in March when the leader recessed the Senate for a long weekend to attend Walker’s investiture ceremony, just as congressional Democrats entered final negotiations on a coronavirus emergency relief package with the White House. 

But Walker, who began presiding as a judge in the U.S. District Court for the Western District of Kentucky in late October, joked during his investiture speech about his long-running history with the top Republican. 

Recalling a McConnell yard sign outside his home when he was 8 years old, the new judge laughed, saying: “I gotta hand it to you mom, it has been extremely important to me that Kentucky’s senior senator is Mitch McConnell.” 

Senator Durbin on Wednesday called out the Republican leader for again prioritizing the district judge over coronavirus by holding the nomination hearing. 

“He’s obviously in the eyes of Senator McConnell worthy for the promotion to the second highest court in the land,” Durbin said, with reference to Walker’s limited experience on the bench and as a litigator. 

Categories / Courts, Government, Politics

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.