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Trump Nominates Judge Once Rejected by ABA for D.C. Circuit (1)

April 3, 2020, 2:56 PMUpdated: April 3, 2020, 6:39 PM

Kentucky federal judge Justin R. Walker is President Donald Trump’s nominee for an upcoming vacancy at the U.S. Court of Appeals for the D.C. Circuit, often regarded as the second-highest court in the land.

Announced Friday, the nomination comes three weeks after Walker’s investiture at the Western District of Kentucky at Louisville, a ceremony attended by Senate Majority Leader Mitch McConnell (R-KY) and Supreme Court Justice Brett Kavanaugh, for whom Walker clerked for at the D.C. Circuit.

Despite support in high places, Walker is likely to be a controversial pick. The American Bar Association previously rated Walker “Not Qualified” while he was going through the confirmation process for his trial court seat, saying in a July letter he lacked the experience needed for the position. That criticism could follow him to his appeals court nomination.

In its letter to to Senate Judiciary Committee Chairman Lindsey Graham (R-SC) and Ranking Member Dianne Feinstein (D-CA), the association said Walker’s experience had “a very substantial gap, namely the absence of any significant trial experience.” But it did say that with more experience, “Walker has great potential to serve as a federal judge.”

ABA ratings are controversial in the Senate, which vets judicial selections. Democrats have flagged negative assessments for some Trump judges, but a number of Republicans have criticized negative ratings as partisan and incomplete. Of the nine Trump nominees that received unqualified ratings from the ABA, seven, including Walker, were confirmed.

If confirmed to the lifetime post, Walker would replace Judge Thomas Griffith, who in early March said he will leave the bench in the fall. He’d also be the third Trump nominee on that tribunal, joining Gregory Katsas and Neomi Rao.

Professor, Kavanaugh Clerk

In addition to clerking for then-U.S. circuit judge Kavanaugh, he also clerked for Justice Anthony Kennedy, who is now retired. Born in Louisville in 1982, he graduated from Duke University in 2004 and Harvard Law School five years later.

Walker continues to teach as a part-time professor at Brandeis School of Law at the University of Louisville, according to the White House announcement, and was previously a partner of counsel at Kentucky-firm Dinsmore & Shohl LLP. He was also an associate at Gibson, Dunn & Crutcher and is a member of the Federalist Society, a conservative group instrumental in Trump judicial selections.

Although Walker faced questions over his lack of practical legal experience from Democrats who cited the ABA’s determination, during his district court confirmation hearing, the Republican-led Senate ultimately confirmed him in October with a party-line vote.

“My experience exploring criminal procedure, evidence, civil procedure, and constitutional law has prepared me to analyze the kind of complex legal questions that judges deal with, especially the majority of what they do, which is motion work,” Walker said defending his qualifications at the July hearing.

The announcement of Walker’s new nomination was met with support from conservatives.

McConnell heaped praise on the nominee from his home-state, saying in a statement that Walker is an “outstanding legal scholar and a leading light in a new generation of federal judges.”

Mike Davis, founder and President of conservative judicial advocacy group Article III Project, which has supported Trump’s judicial nominees, similarly said Walker’s “everyday-American upbringing, Midwestern sensibilities, impeccable credentials, conservative judicial philosophy, and brilliant legal mind” to the influential appeals court.

But liberal groups quickly opposed the nominee, saying he a global crisis isn’t the time to put forward a nominee who they say wouldn’t defend the Affordable Care Act.

“With more than a million cases of the coronavirus and hundreds of thousands of deaths expected, any senator who votes to support Walker’s elevation will be showing just how little regard they have for the crisis American families are facing,” Maggie Jo Buchanan, director of Legal Progress at the Center for American Progress, said.

Fourth Year Push

In an effort to make-good on his 2016 campaign trail promise, Trump has moved aggressively to reshape the judiciary with conservative judges. Those efforts haven’t stopped during the global coronavirus pandemic.

Trump recently on March 30 announced his intent to nominate Cory Wilson to the Fifth Circuit, replacing a nominee who couldn’t make it through the Senate Judiciary Committee due to Republican opposition.

Trump has has appointed 51 judges to circuit courts—that’s more than a quarter of the nation’s federal appellate judges—138 district court judges, and two justices to the Supreme Court: Kavanaugh and Neil Gorsuch.

But the nominations are only the first step of the process, and it’s unclear how quickly Wilson and Walker’s nominations could move in the Senate while the virus keeps people separated.

While Trump has pushed to keep up the pace, a looming hurdle in the process could slow the rate of confirmations.

Most of the remaining vacancies in the federal judiciary are for district courts in states with two Democratic senators. Unlike appellate nominees, those lower court picks require approval from the home-state senators before they can be confirmed.

To counteract that Democratic power, McConnell and the White House are reportedly pushing Republican-appointed federal appeals court judges to step down in a late-term push to add more conservatives to the bench.

(Updates with additional reporting throughout.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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