Senators Can Participate in D.C. Cir. Nominee Hearing Virtually

President Donald Trump’s latest nominee to the appellate court regarded as the second-highest court in the land will testify on Wednesday at his confirmation hearing during which senators may appear virtually in a nod to coronavirus precautions.

The Senate Judiciary Committee will hear from Justin Walker, a federal district judge who’s nominated to the the U.S. Court of Appeals for the District of Columbia Circuit.

A protege of Senate Majority Leader Mitch McConnell (R-Ky) who’s already been through one successful confirmation last fall, Walker is expected to move through the Republican-led chamber a second time despite Democratic opposition.

The hearing will be held in a larger room than the Judiciary panel normally occupies, using social distancing guidelines of six feet. Senators will have the option of attending in person, via video conference, or submitting written questions for the record, a committee aide told Bloomberg Law.

A similar format was adopted for a Banking Committee hearing on Tuesday. Some of the senators there appeared in person and the other half via teleconference. The Supreme Court also held its first-ever oral arguments by phone on Monday.

While the hearing makes good on a promise from Majority Leader Mitch McConnell that the Senate would start its work on judicial nominations as soon as it reconvened, it also comes in contrast with calls from Senate Democrats to halt judicial nominations amid the health crisis.

Judiciary Committee Democrats asked for a hearing delay until after the committee addressed issues related to the pandemic. They said there was no need to rush to nominations with lawmakers facing big issues related to the devastating health and economic impacts of the crisis.

Walker was appointed by Trump last year to serve in the U.S. District Court for the Western District of Kentucky and is a controversial pick among Democrats, who say he’s partisan. He clerked for Brett Kavanaugh during his time on the D.C. Circuit and was a staunch defender of his during his heated Supreme Court confirmation.

Last time around, Democrats criticized his lack of judicial experience, and a “Not Qualified” rating from the American Bar Association to sit as a federal trial court judge. While the ABA judicial nominee ratings committee said he lacked requisite experience, it did say he had “great potential to serve as a federal judge.”

Walker defended himself against Democratic criticism at the time by highlighting his understanding of the law.

“My experience exploring criminal procedure, evidence, civil procedure, 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 at the hearing.

Among other things, Democrats also fear that Walker would vote to dismantle the Affordable Care Act, if given the chance on the appellate court.

Sen. Patty Murray (D-Wash.), the top ranking Democrat on the Health Education Labor and Pensions Committee, pointed last week to a 2018 article Walker wrote while defending Kavanaugh’s high court nomination. Walker wrote that the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, which upheld Obamacare’s individual mandate, was “indefensible.”

McConnell praised Walker after his D.C. Circuit nomination on April 3, saying in a statement that he was an “outstanding legal scholar and a leading light in a new generation of federal judges.”

Scheduling his confirmation hearing for Wednesday moves Walker’s nomination forward at a quicker pace. It also means he leapfrogs over other judicial nominees awaiting hearings, including Trump’s pick for the Fifth Circuit, Cory Wilson. There are currently over 40 named and pending judicial nominees in the Senate.

— With assistance from Jake Holland