WASHINGTON — A nominee for a powerful federal appeals court on Wednesday defended a speech he gave earlier this year embracing “Brett Kavanaugh’s America” and a refusal to “surrender while you wage war on our work, or our cause, or our hope, or our dream.”
US District Judge Justin Walker, facing criticism from Democrats that the speech was inappropriately political for a sitting judge and, now, a nominee to the US Court of Appeals for the DC Circuit, said his speech in March reflected that he was “unabashed” in his “defense of the rule of law” and his embrace of judicial decision-making that focuses on the text of laws — a hallmark of the conservative legal movement.
“Justice Kavanaugh and [former justice Anthony] Kennedy are mentors of mine. I will defend both of them,” Walker said.
Walker on Wednesday also defended calling the US Supreme Court’s 2012 decision upholding the Affordable Care Act “indefensible.” He told Senate Democrats who expressed fear about how he might rule on healthcare issues during the coronavirus pandemic that he was referring to the legal analysis of the Supreme Court’s ruling on the ACA, not the substance of the law itself.
He spoke about his mother’s own health issues and said he hoped that “every American is able to get the medical care they need.” But he said that as a judge his job was to “go where the law leads” and not base decisions on policy preferences. It was an answer that did nothing to win support from Democrats, who insisted that his record showed he would use a seat on the DC Circuit — the main forum for legal fights over federal regulations — to undermine the ACA if given the chance. Walker said he would follow the Supreme Court decision as binding precedent.
Walker, born in 1982, is set to become one of the youngest federal appeals court judges confirmed under Trump. He is a model of the type of young conservative judges whom Trump and Senate Republicans have sought to put on the federal bench. He clerked for Kavanaugh when the justice was still on the DC Circuit; he held leadership posts in the Federalist Society, the country’s preeminent conservative lawyers group, and his path to the judiciary has been personally backed by Senate Majority Leader Mitch McConnell.
Walker has only been a federal judge since October, and when his nomination for the Kentucky court was pending, the American Bar Association committee that vets judicial nominees rated him “not qualified,” citing his lack of legal experience. Less than a year later, however, a majority of the committee voted him “well qualified” for the DC Circuit seat, noting the different job that an appeals court judge performs compared to a trial judge. Other members of the committee voted him “qualified” and “not qualified.”
Walker was a fervent and public advocate for Kavanaugh’s Supreme Court nomination in 2018, and Democrats pressed him on Wednesday about comments he made at his ceremonial swearing-in event in March — a ceremony that McConnell and Kavanaugh attended — that attacked “critics” of the conservative legal movement.
“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,” Walker said in his speech.
Senate Republicans and conservative legal advocates have backed Walker’s nomination since the White House announced it in early April. That support only deepened after he ruled shortly after his nomination in favor of a church in Louisville, Kentucky, that sued to challenge a local prohibition on drive-in church services during the pandemic for Easter Sunday. In the 20-page decision, Walker wrote an impassioned defense of the church to the delight of Republicans and dismay of opponents, who called it an “audition” for his DC Circuit nomination.
Judicial nominees have been hesitant to express opinions about topics that might come before them as judges, but Walker found indirect ways to answer some of those questions on Wednesday. He testified in person at Wednesday’s hearing before the Judiciary Committee, sitting in a mostly empty hearing room; some senators participated in person and others remotely by video.
Sen. Chuck Grassley asked Walker what he thought about judges who issue injunctions that are nationwide in scope; Attorney General Bill Barr and Trump have criticized such injunctions blocking administration policies, and the issue is still winding its way through the courts. Walker began his reply by noting that it’s a pending issue, but then made a point of stressing that his decision in the Kentucky case was “narrow” and limited to the one church that sued.
Asked about a piece of writing he’d provided to the committee that dealt with when courts should defer to federal agencies in interpreting regulations — conservatives favor limiting that deference — Walker said he wasn’t “running away” from his work as an academic. He said he hoped that setting aside the substance of the piece, the senators saw the “rigor” of his research, writing, and analysis. He said it reflected his approach to judging and that he would go into each case with an “open mind.”
Walker’s conservative bona fides include membership in the Federalist Society. As a judge, he signed a letter with other judges in response to a proposed judicial ethics rule that would place limits on judges’ relationship with the group, according to the New York Times. Sen. Sheldon Whitehouse asked Walker why he didn’t submit that letter to the Judiciary Committee as part of his nomination materials — Walker said it was a piece of communication among judges and not the kind of public writing that the committee’s disclosure rules covered.
Walker initially balked when Whitehouse asked who drafted the letter, but he then changed his mind on the spot. He said he thought DC Circuit Judge Greg Katsas — a former senior Trump administration lawyer — and 6th Circuit Judge Amul Thapar — a former Kentucky federal judge with ties to McConnell who is on Trump’s short list of potential Supreme Court nominees — would be “proud” to be identified as the drafters.