Jurisprudence

Democrats Had an Opportunity to Grill Trump’s Trumpiest Judge

They whiffed.

Justin Walker raises his hand
Judge Justin Walker is sworn in prior to testifying before a Senate Judiciary Committee confirmation hearing on his nomination for the U.S. Court of Appeals for the District of Columbia Circuit on Capitol Hill on Tuesday. Photo by Jonathan Ernst—Pool/Getty Images.

There may be no Trumpier Trump judge than Justin Walker. The 37-year-old has been on the bench just six months, but he already managed to write an offensive, gratuitous, inaccurate opinion insulting non-Christians. On Tuesday, Walker appeared before the Senate Judiciary Committee again—this time because Donald Trump has nominated him to a federal appeals court. His hearing could have provided Democratic senators with an opportunity to grill Walker on his brazenly political vision of judging. Instead, most senators ignored the man sitting before them in order to complain that their Republican colleagues were not addressing the pandemic, then let Walker spin out fantastical rationalizations of his own indefensible words. Democrats appeared resigned to the fact that they can’t do anything to stop Trump judges.

It’s true that Walker’s confirmation hearing is far from the most pressing item on the Senate’s to-do list in the pandemic, but Walker has friends in high places who have sped his career along. His meteoric rise can be attributed to two things: Senate Majority Leader Mitch McConnell’s patronage, and Walker’s vocal support for Supreme Court Justice Brett Kavanaugh. Walker clerked for Kavanaugh when the justice served on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Anthony Kennedy on the Supreme Court. When Kennedy retired, Walker endorsed Kavanaugh in 162 media appearances, including 35 Fox News hits. Walker’s quotes ranged from overtly partisan to downright bizarre, as when he described Kavanaugh “storming a beach, his military uniform’s torn and tattered from fighting for conservative legal principles.” When Christine Blasey Ford accused Kavanaugh of sexual assault when the two were teenagers, Walker said she must be “mistaken.” McConnell rewarded Walker’s media blitz with a nomination to the U.S. District Court for the Western District of Kentucky. The American Bar Association rated him “Not Qualified,” and Republicans confirmed him on a party-line vote in October.

In April, Trump nominated Walker to the U.S. Court of Appeals to the District of Columbia Circuit to replace Thomas Griffith, a George W. Bush appointee. (This time around, a divided ABA committee rated him “Well Qualified.”) Democrats are irked that McConnell called the Senate back into session to confirm more judges instead of prioritizing a response to the coronavirus pandemic. That irritation is reasonable given that Griffith will not even step down until September. But McConnell’s No. 1 goal is confirming as many Trump judges as possible. So Democratic senators could not have been surprised that he is ramming through Walker in the midst of a public health crisis.

And yet, one after another, many senators dedicated their allotted time at Tuesday’s hearing to complaining that they were considering judicial nominees instead of negotiating coronavirus relief. That message allowed Walker’s exceptionally partisan record to slip under the radar. Sen. Cory Booker spent his entire time begging an absent McConnell to focus on pandemic legislation. Sen. Kamala Harris didn’t even show up. This approach was especially counterproductive because Walker has an Achilles’ heel. Most of Trump’s judicial nominees hide behind the judicial Code of Conduct to avoid talking about their past writings and comments. Walker, however, delivered a partisan speech at his investiture in March, when he was already a sitting federal judge bound by the judicial code. And, as CQ Roll Call’s Todd Ruger has reported, his address included the following dig at the ABA:

Thank you for serving as an enduring reminder that although my legal principles are prevalent, they have not yet prevailed, and although we are winning we have not won. And that 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.

Walker also said that, when he clerked for Kennedy, the “worst words” he heard were: “The chief justice thinks this might be a tax.” This reference to Chief Justice John Roberts’ decision to uphold the Affordable Care Act’s individual mandate as a tax is a breach of clerk confidentiality. More importantly, it confirms that, even after taking the bench, Walker remains hostile to the ACA, a law he publicly bashed before his confirmation.

Democratic senators seemed eager to connect Walker’s hostility to the ACA to the COVID-19 crisis. A few speculated that Walker would gladly accept the Trump administration’s request to kill the law and strip 20 million people of health insurance during a pandemic. That framing is likely correct, but it rests on a claim that is impossible to prove—that Walker will invalidate Obamacare if he gets a chance. Meanwhile, just two months ago, Walker publicly accused liberals of trying to seize “our courts and our country” while mocking Hillary Clinton’s infamous “deplorables” quip. The judicial Code of Conduct bars judges from making political comments or revealing potential political biases. Walker’s speech did precisely that.

But only a few senators pressed Walker to explain exactly what he meant in his aggressive speech, and when they did, he fell back on a carefully coached, totally meaningless answer. For instance, Sen. Patrick Leahy asked Walker, “Who are we going to lose our courts to in this country?” The nominee responded with pure pablum. “The message there and throughout my investiture speech was really twofold,” Walker said slowly, as if trying to recall lines from a script. “The first message was that good judging means taking the judge’s personal policy preferences out of the equation and following text, structure, history, and precedent. The second point is that the politicization of the judiciary is harmful to an independent judiciary. I wasn’t trying to inject politics into my speech. I was trying to push back against the politicization of the judiciary.”

That answer makes absolutely no sense, since the speech was extremely political—it described a war between Democratic and Republican judges, and firmly sided with Republicans. Yet Leahy responded limply: “Judge, you’re under oath, so I’ll take that as your answer,” adding that “some” (not all!) “feel that was more of an audition statement.”

A few other senators drew meaningful tidbits from Walker. Sen. Sheldon Whitehouse got him to reveal that two Trump judges are spearheading opposition to a proposed ethics rule that would bar judicial membership in the Federalist Society, a conservative legal network that helps funnel dark money to Republicans. And Sen. Mazie Hirono zeroed in on Walker’s only notable ruling so far—a disastrous, widely condemned injunction against an alleged ban on drive-in church services in Louisville, Kentucky, that did not actually exist. Hirono noted that Walker did not have time to ask Louisville whether the ban was real (it wasn’t)—but he did find time to write a 20-page opinion with dozens of footnotes shooting down the imaginary rule.

Yet Hirono failed to mention another egregious aspect of Walker’s opinion: In a lengthy passage, he favorably cited Christian theology, then drew a strange distinction between “believers” and “nonbelievers,” implying that the latter group does not understand the importance of religious freedom. Walker’s behavior in the case should be proof enough that he cannot distinguish between his personal beliefs and his duties as an impartial judge.

Judicial nomination hearings are, to most people, very boring. McConnell knows this and exploits lack of public interest in the lower courts to push through culture warriors like Walker. Democrats, as members of the minority party, have little if any power to stop these nominees. But they can alert the public to the Trump administration’s rapid transformation of the federal courts into an arm of the Republican Party. These hearings can provide a useful opportunity for senators to interrogate nominees about their irresponsible, inappropriate rhetoric—to hold them accountable for their past misbehavior, to prove to the American people that the GOP is stacking the courts with partisan hacks. On Wednesday, most senators whiffed. Walker’s confirmation vote is still weeks away. But his anticlimactic hearing removed the last real obstacle to a seat on the second-most-powerful court in the country.