The coronavirus has not stopped Donald Trump and Mitch McConnell’s relentless assault on the federal courts. Nothing stops them. Trump has nominated a record number of judges to lifetime appointments, and McConnell has never delayed in confirming them.
Because of the pace of nominations, and the inability of Senate Democrats to do anything to stop them, Trump judges tend to sail through the confirmation process without any real media attention. Every so often, a particularly odious one pops into the news cycle for a day, but the people do not rise up, and Republicans fall in line to vote the archconservative into lifetime power.
Still, despite the inevitability of this onslaught, it’s worth pausing for a few minutes to reflect on Trump’s latest nominee to the US Court of Appeals for the DC Circuit: Justin Reed Walker.
Justin Reed Walker is an unqualified, inexperienced McConnell crony who admires Brett Kavanaugh and opposes the Affordable Care Act. He has no business being on the DC Circuit court, widely regarded as the most powerful circuit court in the nation and a holding pen for future Supreme Court justices. Trump’s decision to tap an ACA denier while the nation is preoccupied with a public health crisis is the kind of sick joke that only Mitch McConnell and the Federalist Society find funny.
That Walker is “unqualified” is not merely my opinion. Not long ago, the American Bar Association deemed Walker “not qualified,” writing in a letter to the Senate Judiciary Committee: “Mr. Walker does not meet the minimum professional competence standard necessary to perform the responsibilities required by the high office of a federal district court judge.”
That Walker is “inexperienced” is also not my mere opinion. Walker is only 38 years old. That’s a childlike age for a lifetime appointee to the circuit courts. And he hasn’t done much in his 38 years. One of the reasons he garnered an “unqualified” rating is that as a lawyer in private practice, Walker never led a trial. He’s produced no legal scholarship of note. He has taken only one deposition during his whole legal career. There’s nothing that recommends him for this post, other than the fact that Mitch McConnell has known him since high school.
All of these issues with Walker’s qualifications came up when he was nominated and confirmed to the district court in Western Kentucky last year. He hasn’t significantly added to his résumé since being confirmed to that post, because he’s had that job for [checks notes] six months.
Why are Republicans fast-tracking a baby lawyer from obscurity to one step below the Supreme Court in under a year? Because Walker did the Republican legal establishment a solid. Walker used to clerk for alleged attempted rapist Brett Kavanaugh when Kavanaugh was on the DC Circuit. When most of the legal establishment went scurrying away from Kavanaugh—having stuck with him through perjury allegations and questionable financial dealings, elite law types finally stopped writing love letters about the man’s “character” after the attempted-rape allegations surfaced—Walker stuck with his mentor through it all.
Judge Brett Kavanaugh should be the next Supreme Court justice. He has by far the strongest, most consistent, most fearless record of constitutional conservatism of any federal court of appeals judge in the country.
Over 12 years and 300 opinions, he has repeatedly fought for principles of textualism and originalism, reined in regulatory overreach, and ensured that administrative bureaucrats are accountable to the elected president. Nominating Kavanaugh would continue President Trump’s exemplary record of selecting the best-qualified person for the Supreme Court, as he did with his brilliant choice of Justice Neil Gorsuch.
If I wrote that way about my wife, she wouldn’t respect me in the morning.
Walker is just the latest beneficiary of a particular Republican grift: People who vocally defended Kavanaugh have been rewarded for their loyalty with plum jobs and important nominations ever since he was confirmed. After a Yale Law School student spearheaded a letter in support of Kavanaugh from Yale Law students, that student got a job clerking for Kavanaugh on the Supreme Court. After a Yale Law School professor wrote a Wall Street Journal op-ed praising Kavanaugh, that professor’s daughter also got a job clerking for Kavanaugh on the Supreme Court. The next generation of “elite” Republican legal scholars and judges are being chosen based on their fealty to Kavanaugh’s cause.
After clerking for Kavanaugh, Walker went on to clerk for Justice Anthony Kennedy. Again, this was not that long ago, since Walker is a child in judge years, a courtroom noob who was still in law school when Mad Men was on the air. In fact, Walker was clerking for Kennedy when Kennedy was busy dissenting in National Federation of Independent Business v. Sebelius, the case that upheld Obamacare. Walker shared his thoughts on that case—as part, yes, of one of his many paeans to Kavanaugh:
Kavanaugh’s thorough and principled takedown of the mandate was indeed a roadmap for the Supreme Court—the Supreme Court dissenters, justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, who explained that the mandate violated the Constitution. I am very familiar with that opinion, because I served as Kennedy’s law clerk that term. I can tell you with certainty that the only justices following a roadmap from Brett Kavanaugh were the ones who said Obamacare was unconstitutional.
Kavanaugh was equally critical of the individual mandate under the weak Taxing Clause argument advanced by the government and catastrophically accepted by the Supreme Court.
This is the guy McConnell and Trump are nominating during a public health crisis—a guy who opposes expanding health care and thinks John Roberts’s ruling upholding the ACA’s private mandate was an unconstitutional “catastrophe.”
Sadly, there is nothing that can really be done to stop Walker, or any other unqualified conservative whom Trump and McConnell push to fill a judicial vacancy. Even if people were inclined to protest, given the realities of the pandemic and the attendant necessity for social distancing, they couldn’t engage in the kind of broad civil disobedience and unrest that would be necessary to stop any of these Trump judges. Still, it might be time to ask why there are still judicial vacancies to be filled.
In this case, Walker is replacing Judge Thomas Griffith, who was appointed by George W. Bush in 2005. Judge Griffith is 65 years old, and seemingly in good health. There’s no obvious, public reason for him to retire now, effective September 1, just a couple of months before the 2020 election.
Unless, that is, Mitch McConnell is worried that Trump is going to lose in 2020 and begged Griffith to step aside. There have been reports that McConnell has been privately calling conservative judges and asking them to step down so that Trump might nominate their replacements.
The judicial watchdog group Demand Justice has called for an investigation into the circumstances around Griffith’s retirement. If McConnell promised anything of “value” to Judge Griffith in exchange for his retirement, that would be a violation of judicial ethics laws.
Unfortunately, I doubt that McConnell said anything so obvious as to be a violation of ethics law, and, if he did, he certainly didn’t write it down.
This entire Walker saga shows how incestuous the Republican judge-making machine really is. McConnell has known Walker since Walker was in high school. Walker clerked for Kavanaugh and Kennedy. McConnell probably strong-armed another Republican into retirement to open up a seat for his Kentucky boy. Trump nominated the person he was told to nominate. That’s how you end up on the second-most-powerful court in the country at 38 despite being labeled unqualified by the American Bar Association.
I, and most of the people reading this, will likely be dead by the time Walker is removed from power. The damage Trump and McConnell has done to the federal judiciary cannot be undone for a generation.
Anybody who is thinking about giving these people another four years to infect the courts with anti-health ideologues like Walker, simply because their preferred candidate lost the Democratic primaries, needs to understand where this game is actually being played. And why we’re losing.