The United States Law Week

Senate Confirms McConnell Protege Walker to D.C. Circuit (1)

June 18, 2020, 6:34 PMUpdated: June 18, 2020, 8:36 PM

Federal judge Justin Walker, a protege of Republican Senate Majority Leader Mitch McConnell, was confirmed Thursday to a seat on the U.S. Court of Appeals in Washington.

Walker won Senate approval to the court widely considered the second-highest in the nation, handing President Donald Trump a victory on his most contentious judicial nomination this year. The triumph was muted some by elevated Republican tension over rulings this week by the majority conservative Supreme Court underscoring LGBTQ worker rights and upholding an Obama-era immigration program.

Democrats opposed Walker’s appointment, arguing that his record on healthcare and LGBTQ rights was partisan. The mostly party-line vote was 51-42, with Sen. Susan Collins (R-Me.) joining Democrats voting against his confirmation.

Walker is Trump’s third appointment to the D.C. Circuit, which is uniquely situated to make decisions in agency-related disputes. Circuit courts sit one rung below the Supreme Court and are the last stop for virtually all federal appeals. He is being elevated from the U.S. District Court in Louisville to replace Thomas Griffith, who is retiring in September.

His approval marks 199 judicial confirmations for the president, moving him one appointment from a milestone he’s sure to tout in his reelection campaign.

The Senate is expected to soon give Trump his 200th confirmation when it votes on Fifth Circuit nominee Cory Wilson, who’ll likely fill the last appellate level vacancy before Election Day. McConnell on Thursday filed a cloture motion to end debate on Wilson’s nomination and bring him closer to a confirmation vote. So far, the Senate has installed 143 trial court judges, 52 appellate judges, two international trade court judges, and two Supreme Court justices nominated by Trump since 2017.

Walker, 38, received his district court confirmation only seven months ago after being rated “not qualified” for that seat by the American Bar Association, which cited his lack of experience. Still, the ABA awarded him its highest rating possible for the D.C. Circuit seat.

In addition to backing from fellow Kentuckian McConnell, Walker has other high-level ties. He clerked for Supreme Court Justice Brett Kavanaugh when he was on the D.C. Circuit and retired Justice Anthony Kennedy. Both Kavanaugh and McConnell were present at his investiture ceremony in March.

During his appellate confirmation process, Walker faced criticism for comments he made about Obamacare both in an article and at his investiture. Democrats linked those comments to the coronavirus pandemic, arguing that it wouldn’t be wise to confirm a judge who might rule against the health law during a crisis.

In a 2018 article supporting Kavanugh’s nomination to the Supreme Court, he criticized the high court’s decision upholding Obamacare in National Federation of Independent Business v. Sebelius as “indefensible.” Later, at his investiture, he joked about Chief Justice John Robert’s decision to consider the individual mandate, or penalty for not getting insurance, a tax.

But at his May 6 confirmation hearing, Walker defended himself by saying the criticism in his article “wasn’t a commentary on the merits of any particular healthcare policy. It was legal analysis on constitutionality,” and the comment he made during his speech was a joke.

Walker also gained national attention during the pandemic for an opinion allowing a church to go forward with Easter services. Critics said the opinion—which chronicled the historic plight of Christians—was unnecessarily long and issued without first waiting for the City of Louisville to respond.

Conservatives, however, praised the opinion. McConnell on Twitter called it a “strong, eloquent ruling,” and Sen. Rand Paul (R-Ky.) used the ruling as an example of Walker’s understanding of the law and commitment to upholding the Constitution when he introduced him at his confirmation hearing.

At that hearing, Walker said his opinion was long because he believed it was a “momentous” decision and, when asked by Sen. Chuck Grassley (R-Iowa) about whether he agreed with the practice of broad, nationwide injunctions pointed to it as evidence of his ability to keep his decisions narrow in scope.

(Updates with GOP tension over Supreme Court decisions, Wilson cloture motion.)
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