A Pandemic Won’t Stop Trump And Republicans From Trying To Get More Judges Confirmed
The White House announced a nominee for the DC Circuit on Friday. The Senate Judiciary Committee hasn’t decided yet how to handle new nominations, which usually involve in-person testimony.
WASHINGTON — The White House on Friday announced President Donald Trump’s latest nominee for a powerful federal appeals court, underscoring Trump and Republicans’ commitment to putting new judges on the bench notwithstanding the coronavirus pandemic.
US District Judge Justin Walker, a relatively new federal judge in Kentucky, is Trump’s pick for the US Court of Appeals for the DC Circuit. The 37-year-old Walker, who first joined the federal bench six months ago, is a fast-rising star in the conservative legal world — too fast, according to the American Bar Association committee that rates nominees, which concluded last year that Walker was “not qualified” due to a lack of experience.
The White House had already signaled that it would not pause work on judicial nominees as the country faces a growing death toll and economic devastation from the spread of COVID-19, the disease caused by the novel coronavirus. On Monday, the administration announced a new nominee for the 5th Circuit as well as for a Mississippi district court seat. The White House announced three sets of new district court nominees in February.
In an interview earlier this week with conservative talk show host Hugh Hewitt, Senate Majority Leader Mitch McConnell would not commit to passing another coronavirus relief bill, but said that he planned to continue confirming Trump’s nominees for lifetime appointments in the federal courts when the Senate currently plans on returning from its recess later this month.
“Of course, we will go back to judges,” McConnell said. “You know, Hugh, you and I have talked about this before. My motto for the rest of the year is leave no vacancy behind.”
Walker’s nomination Friday drew quick praise from McConnell, his home state senator, who called Walker a “judicial all-star,” as well as from conservative legal groups. McConnell attended Walker’s swearing-in ceremony last month, joined by US Supreme Court Justice Brett Kavanaugh; Walker clerked for Kavanaugh on the DC Circuit and publicly supported Kavanaugh’s high court nomination in 2018.
Liberal groups that opposed Walker’s nomination last year to the Kentucky district court — the Senate confirmed him in October — condemned his nomination to a higher court on Friday. Citing Walker’s past criticism of the Affordable Care Act, the liberal non-profit People for the American Way released a statement calling Walker’s nomination “especially egregious now in the middle of a national public health crisis.”
One potential hiccup in Republicans’ effort to keep confirming judges as the coronavirus outbreak continues is that hearings for nominees usually involve in-person sworn testimony and that the committee itself has to meet to vote. Social distancing and travel restrictions could complicate that process.
There are 79 district and circuit court vacancies, according to the federal judiciary. Of the 37 district and circuit court nominees pending in the Senate (not counting Walker, whose nomination hasn’t formally been sent over yet), 10 have made it out of committee and are waiting for a final vote. The rest are still in earlier phases.
Senate Judiciary Committee chair Lindsey Graham last month told Bloomberg Law that they’d keep working on nominations, but his office told BuzzFeed News this week that they hadn’t decided what to do yet.
“We’ll make decisions when we get closer to the Senate being in session,” Graham spokesperson Taylor Reidy wrote in an email.
Mike Davis, who heads the conservative judicial advocacy group Article III Project and previously worked on the Senate Judiciary Committee, told BuzzFeed News that he thought there were ways the committee could safely move on nominees. For instance, they could meet in a larger room — like the one used for Supreme Court nomination hearings — so senators and the nominee could sit six feet apart in accordance with social distancing guidelines.
Davis said he didn’t think that Congress’s focus on responding to the coronavirus outbreak meant they should pause working on nominations.
“They can walk and chew gum at the same time,” Davis said. “They have committees so they can divide up the work.”
A spokesperson for the Judiciary Committee’s top Democrat, Sen. Dianne Feinstein, declined to comment.
Brian Fallon, who heads the liberal legal advocacy group Demand Justice, called McConnell’s plan to keep working on judicial nominations “outright ghoulish.”
“Pandemic response deserves 100 percent of Congress' attention right now, not jamming through more Trump picks for the bench. Every day brings more deaths and lost jobs but McConnell acts like the greater urgency is Trump's limited time left to nominate judges,” Fallon wrote in an email.
Walker’s DC Circuit nomination is significant for Republicans on a few levels. The DC Circuit is the primary court for legal fights over government regulations and the relationship between the executive branch and Congress. It’s where cases contesting Congress’s power to subpoena federal agencies and past and present Trump administration officials during the impeachment battle landed last year.
The DC Circuit historically has been a launching pad to the Supreme Court. Besides Kavanaugh, other alumni include Chief Justice John Roberts Jr. and Justices Ruth Bader Ginsburg and Clarence Thomas.
The DC Circuit seat, which doesn’t officially become vacant until Judge Thomas Griffith retires in September, is also one of only two circuit court vacancies nationwide. Circuit judgeships have been a priority for the administration because those courts set precedent for the regions of the country that they cover absent a ruling from the Supreme Court, where comparatively fewer cases are heard.
The White House on Monday announced that Judge Cory Wilson, who currently serves on a Mississippi state appeals court, was Trump’s nominee for the other circuit court vacancy, on the 5th Circuit. The administration’s previous nominee for that seat, US District Judge Halil “Sul” Ozerden, was dropped after he faced opposition from Senate Republicans who questioned his conservative credentials.
Conservative legal groups, including Davis’s Article III Project and the Judicial Crisis Network, have rallied around Wilson’s nomination so far. Liberal groups denounced it, emphasizing Wilson’s past public opposition to the Affordable Care Act.
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