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D.C. Circuit Nominee Justin Walker Just Got Grilled Over His Smitten Hopes for ‘Brett Kavanaugh’s America’


Senate Judiciary Hearing Confirmation Hearing

Justin Walker, the conservative judicial star who in his thirties has skyrocketed from law professor to district court judge to circuit court nominee in less than one year, has been grilled over his previous takes on key legal issues which undoubtedly caught the attention of conservative and Republican politicians who have nominated him to the bench but which raised concerns about objectivity from liberals and Democrats.

Walker had been rated “not qualified” to be a district judge by the American Bar Association due to a lack of trial experience; the ABA reversed that rating on the eve of his nomination hearing, saying that it had different standards for evaluating appellate judges. Walker is the so-called “Trump judge” behind a recent scathing opinion which harshly scolded a mayor for passing COVID-19 protective measures which interfered with religious services. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” Walker wrote in a highly-quoted and widely-noticed opinion.

After Walker sat for less than a year as a federal district court judge, President Donald Trump nominated him to take a seat on the Washington, D.C. Circuit Court of Appeals, which is arguably the nation’s most prominent and most important circuit appeals court. Walker needs to be confirmed to that bench, and he was questioned at a Senate Judiciary Committee hearing on Wednesday.

“No Supreme Court justice likes being in the dissent,” Walker said in response to questions from Senate Judiciary Chairman Lindsey Graham (R-S.C.) about the Affordable Care Act, also known as Obamacare, which has thrice been litigated all the way to the Supreme Court. Graham asked Walker about comments he made when he was elevated to his current seat as a district court judge about his time as a clerk for then-Supreme Court Justice Anthony Kennedy. Walker demurred on the specifics, despite being awfully specific in the past:

At my investiture speech, I wanted to pay tribute to Justice Kennedy, I wanted to tell him he changed my life by hiring me, and at the end of a paragraph paying tribute to Justice Kennedy, I made a lighthearted allusion to his dissent in NFIB v. Sebelius.  It was nothing more than a, really, a tongue-in-cheek way of recognizing what’s certainly in the public record already — what’s in the United States reports — and that is that the Chief Justice wrote a majority opinion holding that the individual mandate is a tax and that Justice Kennedy dissented.

Ranking member Dianne Feinstein (D-Calif.) asked a series of questions about why Walker has written and spoken critically of the legal reasoning of the Affordable Care Act — and why he would suddenly have no problem following the law he has criticized in the past now that he is on the bench.

Feinstein hit Walker with his own 2018 words which once called the decision upholding the ACA “indefensible” and which praised Brett Kavanaugh, at the time a D.C. Circuit judge, for providing a “roadmap” for unraveling the ACA.

Walker, when asked why the decision upholding the ACA was in his opinion “indefensible,” simply said he would follow the law upholding the ACA and that he had a right as a law professor (his job before his ascension to the bench) to criticize the “legal reasoning” of the decision.  He said his “legal analysis” about “constitutionality” was not a “commentary” on “policy.”

Walker’s point is somewhat legally moot; Congress recently set the individual mandate of the ACA to zero, thus resulting in the latest round of litigation about whether the ACA remains a “tax” in legal terms. If it is not a “tax,” the argument goes, the ACA is unconstitutional.

Feinstein then turned to Walker’s investiture statements, which included comments that the “worst words” Walker heard in the Supreme Court were that Chief Justice John Roberts was considering upholding the ACA as a constitutionally permissible tax.  Walker again demurred by saying his comments referencing the “worst word” he ever heard were nothing more than a “tongue and cheek allusion” to the realization that the justice for whom he worked, Kennedy, would not be in the majority.

Feinstein then asked why she should support Walker as a nominee whose jurisprudence would potentially take away health coverage from Americans in the middle of a pandemic.  Walker said many Americans knew people whose health and economic situations had been affected by the pandemic.

“That’s your answer?” Feinstein snapped back.

Walker then said he didn’t have “policy preferences” as a judge; he said he merely applied the law where it “leads.”  Walker later circled back to the economic impacts of the virus during questions by Sen. Patrick Leahy (D-Vt.).

Feinstein then hit Walker with his own words about “Brett Kavanaugh’s America.”

Here’s what Walker said about Kavanaugh during his recorded investiture speech:  “You were like St. Paul.  Hard pressed on every side but not crushed, perplexed but not in despair, persecuted but not abandoned, struck down but not destroyed — because in Brett Kavanaugh’s America, we will not surrender while you wage war on our work or our cause or our hope or our dream.”

“What did you mean by ‘Brett Kavanaugh’s America,'” Feinstein asked.

“I’ll defend them both,” Walker said by broadening the question to note that both Kennedy and Kavanaugh were his “outstanding” judge mentors. Later, Walker, who clerked for Kavanaugh as well as Kennedy, said he would “defend them both until the cows come home.”

“Good judging means being faithful to the original meaning of text and consideration of structure, precedence, canons of construction, etc.,” Walker said. “And, so, I was in my speech saying that I am unabashed, as other judges have been, in my defense of the rule of law and of the approach to judging that considers text rather than inserting a judge’s political opinions what the law is.”

Feinstein tried to cut through that answer. She believed Walker was suggesting Kavanaugh’s agenda was a departure from the normal course of business of judges.

“As I read it, you referred to ‘our work, our cause, our hope, and our dream’ as being different from what is usually taken, but identified it with Justice Kavanaugh’s views — and I’m just interested in knowing what that meant,” Feinstein asked.

“Certainly, Senator,” Walker answered. “I think Justice Kavanaugh’s approach to the law respects separation of powers, it respects the judge’s limited role in our constitution structure, and it demonstrates fidelity to text, and these are the kinds of legal principles that I was praising whenI was praising Justice Kavanaugh in my investiture speech.”

Feinstein then turned questioning over to Sen. Chuck Grassley (R-Iowa), who was concerned about the legal deference judges should give to the interpretations of federal law by federal administrative agencies, which are legal hybrids between executive and legislative branches.

Sen. Leahy was more interested in the Affordable Care Act; he looped back to Walker’s opinion about COVID-19 religious services.

“What my opinion attempted to do was to say that the free exercise clause, the right to religious worship, is among the apex of rights in our constitutional order, and it’s there not because I have put it there, but because the framing generation put it there though the First Amendment,” Walker said. “Unfortunately for our country, there has been some terrible intolerance toward people of faith, and some of that history informed the writing and the ratification of the First Amendment.”

Walker then later bemoaned the politicization of the judiciary, despite his life situation being the arguable result of that politicization:  “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,” Walker said of his investiture speech in response to Leahy’s questions.

Sen. Dick Durbin (D-Ill.) cut even harder into Walker.

“The problem we have, judge, is that we expect of our judges honesty, humility, impartiality. You have not been the last bit impartial when it comes to the Affordable Care Act. Your legal or — slash — ‘constitutional’ contempt is obvious. You call it an ‘indefensible’ decision, the decision upholding the Affordable Care Act. ‘Indefensible.’ Your words. At your own ceremonial investiture, with a supreme court justice standing by you, you mocked it.”

[ . . . ]

“Now we’re in the midst of a pandemic, where the question is being asked by everyone, ‘can I protect myself, can I protect my family if I have to face this virus?’ That is a question people face many times each day. And, here, you come before us asking for a lifetime appointment to the second highest court in the land, having mocked the law that basically provides an attempt to extend health insurance to more Americans. Do you understand the angst? Do you understand the concern that we have to put you in that position at this moment in history?

Walker said his mother survived breast cancer, heart ailments, and neurosurgery, and that he hopes Americans have access to medical care they need, but he said his job as a judge was not to decide such policies.

Walker, in an arguably defiant tone, refused to promise Durbin that he would recuse himself from cases involving the Affordable Care Act, but he did promise to follow the federal recusal statutes “to the letter.”

“Judge Walker, after 162 television appearances, after all that you’ve written and all that you’ve said, it is painful to hear you say you have an open mind on the issue of the Affordable Care Act,” Durbin said to Walker. “I gave you an issue to clear this issue off of the agenda; you’ve chosen not to.”

Sen. Mike Lee (R-Utah) said the legal argument that the Affordable Care Act was improperly written is not the same as a decision that the underlying policy of the law is or was wrong. In other words, a judge could hypothetically believe everyone should receive insurance but that a law which attempts to grant it must fail for constitutional defects. That, Lee argued, was what was wrong with the Affordable Care Act.

Walker is still listed as a contributor to the conservative Federalist Society.

[Image via screen capture from the Senate Judiciary Committee video stream.]

Editor’s note:  this report has been updated shortly after publication to include additional comments from Walker and additional questions from the senators.

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.