Judge Justin Walker is a window into McConnell’s sway on federal courts

Pick for D.C. Circuit part of a growing group of similarly situated jurists

Senate Majority Leader Mitch McConnell, R-Ky., talks with Justin Walker before a Senate Judiciary Committee hearing on Walker’s nomination to be a U.S. district judge for the Western District of Kentucky on July 31, 2019. (Caroline Brehman/CQ Roll Call)
Senate Majority Leader Mitch McConnell, R-Ky., talks with Justin Walker before a Senate Judiciary Committee hearing on Walker’s nomination to be a U.S. district judge for the Western District of Kentucky on July 31, 2019. (Caroline Brehman/CQ Roll Call)
Posted April 17, 2020 at 2:33pm

The way Senate Majority Leader Mitch McConnell tells the story, the start of Justin Walker’s rapid rise to a federal judgeship started two decades ago with his particularly insightful high school research paper about partisan politics.

Walker interviewed McConnell about the 1994 midterm election, when Republicans swept both chambers of Congress for the first time in 40 years. In the process, he told the Kentucky Republican that particular election was the most exciting thing that had ever happened in his young life.

“Clearly, he had excellent political tastes from quite a young age,” McConnell told the crowd last month at Walker’s formal investiture as a judge for the U.S. District Court for the Western District of Kentucky.

This fall, in what could be the capstone of the Republican race to fill judicial vacancies, McConnell now will seek to sweep “my good friend Justin Walker” and those long-observed political tastes onto a federal appeals court in Washington often referred to as the second-most-important court in the country.

The story of Walker’s career path — from precocious partisan to what McConnell dubbed “a leading light in a new generation of federal judges” — encapsulates how McConnell’s grip on judicial confirmations during the Trump era has given conservatives a lasting advantage in the nation’s courts on contentious policy fights such as abortion, gun control, immigration and health care.

President Donald Trump shakes hands with Senate Majority Leader Mitch McConnell, R-Ky., after delivering his address to a joint session of Congress on Feb. 28, 2017. (Bill Clark/CQ Roll Call)

With McConnell at the helm, Republicans relish their record-setting rate of confirming President Donald Trump’s appointments to federal appeals courts, which have the final say in all but the several dozen cases the Supreme Court hears each year. As a group, Trump’s picks are often younger, sometimes inexperienced and often arrive with a background of outspoken ideological views.

Democrats decry it, but with only 47 votes in their caucus and after years of an erosion of minority power in the Senate, they are unable to stop it—unless at least four Republicans are willing to face retribution from a president who tweets and a majority leader with great sway over the fate of their efforts on other policy issues.

McConnell used his perch last year to secure that federal judgeship in Kentucky for Walker. He’s 37 years old, never tried a case, never served as co-counsel and got a rare “not qualified” rating from the American Bar Association. In 2018, though, Walker did go on a media blitz to help Republicans confirm Trump’s pick of Brett M. Kavanaugh to the Supreme Court.

The new judge used his formal investiture ceremony, just five months after his Senate confirmation to a lifetime tenure judgeship, to align himself and his approach to the law with the partisan battle over the judicial branch.

In his list of “thank-yous,” Walker included the ABA and other opponents of his nomination, and he alluded to 2016 Democratic presidential nominee Hillary Clinton’s oft-referenced remarks that half of Trump’s supporters belong in a “basket of deplorables.”

“Thank you for serving as an enduring reminder that although my legal principles are prevalent, they have not yet prevailed, and although we are winning we have not won,” Walker said. “And that although we celebrate today, we cannot take for granted tomorrow, or we will lose our courts and our country to critics who call us terrifying and who describe us as deplorable.”

Three weeks later, the White House announced it would nominate Walker to the U.S. Court of Appeals for the District of Columbia Circuit. On that court, seated at the heart of the federal government, he would have greater sway over regulations and issues with a nationwide scope.

And, last week, he wrote a new opinion on religious freedom and the COVID-19 pandemic that already stirred up more debate over his nomination.

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Important meeting

McConnell said he wanted to lure Walker into public service the first time he met him two decades ago, but there was an issue: “He still had to graduate from high school.”

Walker had been introduced to politics during an upbringing that, as he describes it, “wasn’t exactly ‘Leave it to Beaver.’”

He was raised by a single working mom, Deborah Walker, who left her low-paying but stable job when he was 6 years old, mortgaged the house, and used the money to buy a stationery shop so that she could be with her son while she worked.

Two years later, Walker said he asked his mom why they had an election yard sign for McConnell. “My mom said: ‘We have this yard sign because this election is important,’” Walker said.

It was a view he carried into high school, when he interviewed McConnell for the research paper. Walker’s grandfather, a friend of McConnell’s, had asked for the interview.

“Justin just blew me away,” McConnell said, with his insightful thinking, well-researched questions, and a paper that read more like a doctoral thesis.

McConnell said his approach to the talent he recognized was like that of a scene from a “Star Wars” movie that heavily foreshadowed later events.

In “The Phantom Menace,” Palpatine, the dark lord of the Sith who would eventually mastermind a war to seize control of the galaxy, speaks to a young boy with untapped potential, Anakin Skywalker, who would later become Palpatine’s apprentice in the dark arts and turn into the infamous Darth Vader.

“We’ll be watching your career with great interest,” McConnell quoted the line at Walker’s investiture ceremony.

Intern to judge

That career would weave in and out of law firms and conservative power circles, and cut an impressive path through the legal elite in the nation’s capital, according to paperwork he filed with the Senate as part of the judicial confirmation process.

Walker interned at McConnell’s office, and in the communications department of the 2004 Bush/Cheney presidential campaign. He got a bachelor’s degree from Duke University. He spent 2005 and 2006 at the Pentagon as a speechwriter for then-Defense Secretary Donald Rumsfeld.

In his first year at Harvard Law School in 2006, Walker joined the Federalist Society, a decades-old fraternity of sorts for conservative legal thinkers that helped Trump put together a list of potential Supreme Court picks during the campaign and has since held great sway over judicial nominations.

Walker graduated from Harvard magna cum laude in 2009. The next year he became a law clerk for Kavanaugh, who was then a judge on the D.C. Circuit. And in 2011 he was hired as a law clerk for Supreme Court Justice Anthony M. Kennedy.

It was in those clerkships that Walker honed opposition to the constitutionality of the 2010 health care law known as the Affordable Care Act — a view his detractors will make central to the Senate debate about his appointment to the D.C. Circuit.

Walker, at his investiture last month, said that Kennedy’s decision to hire him changed his life. At the same time, he took a shot at the 2012 Supreme Court decision that upheld that law. Chief Justice John G. Roberts Jr. joined the liberal wing of the court, for a 5-4 ruling, using a tax-related legal justification that is widely panned among members of the Federalist Society.

“The greatest words you could hear from Justice Kennedy are, ‘You’re hired.’ And the worst words are, ‘The chief justice thinks this might be a tax,’” Walker said, eliciting knowing chuckles from the audience.

Walker moved back to Louisville in 2013 and practiced law from his home. He became a law professor at the University of Louisville in 2015, and took leadership roles in the city’s Federalist Society chapter.

And then, in June 2018, his career publicly crossed paths with McConnell again when two things happened, although it’s not clear in which order.

Walker contacted McConnell to express an interest in becoming a federal judge. And he “first learned” McConnell was considering whether to recommend the White House nominate him to be a judge on the Western District of Kentucky.

Kavanaugh connection

Something else happened that month in the legal world that would overshadow everything else: Kennedy, a pivotal vote on contentious cultural issues such as same-sex marriage and abortion rights, stepped down from his seat on the Supreme Court after 30 years.

President Donald Trump nominates Judge Brett Kavanaugh to replace Supreme Court Justice Anthony Kennedy in the East Room of the White House on July 9, 2018. (Sarah Silbiger/CQ Roll Call)

The Senate’s confirmation fight over Kavanaugh, Trump’s pick to fill the vacancy, would turn bitterly partisan and capture the nation’s attention over the next four months — and Walker took an active role in the roiling public relations battle over his former boss in his D.C. Circuit clerkship.

McConnell, who has made filling the Supreme Court and the nation’s federal courts with conservative judges a top priority of his time as majority leader, needed all the help he could get to keep Republicans united and secure a confirmation.

The appointment of Kavanaugh would solidify the Supreme Court’s conservative tilt, likely for decades. Walker did 119 radio, print and television interviews to support the nomination and “share my perspective on Justice Kavanaugh with audiences less familiar with him than I was.”

Among his arguments: Kavanaugh’s confirmation would result in an end to bans on semi-automatic rifles; and Kavanaugh’s writing as a D.C. Circuit judge provided a roadmap for striking down the 2010 health law, but instead the Supreme Court made an “indefensible decision” to uphold it.

“What can I say,” Walker said when thanking Kavanaugh at his investiture, “that I haven’t already said, on Fox News?”

At least 16 of those appearances came after moderate Republican senators might have wavered on supporting Kavanaugh in mid-September. Christine Blasey Ford powerfully testified that Kavanaugh sexually assaulted her decades earlier at a high school party, and Kavanaugh forcefully denied the accusations before the Senate Judiciary Committee.

Christine Blasey Ford, the woman accusing Supreme Court nominee Brett Kavanaugh of sexually assaulting her at a party 36 years ago, testifies before the Senate Judiciary Committee on September 27, 2018. (POOL PHOTO / SAUL LOEB / AFP)

In a Sept. 27, 2018, appearance on Fox News, Walker said that he believed Ford was mistaken about the identity of her attacker, because he worked with Kavanaugh every day for a year and trusts his denial.

“I believe he’s the kind of person who would rather lose a job than tell a lie, and so when he says he didn’t do this, I believe he didn’t do this,” Walker said.

And in a Fox & Friends appearance on Oct. 6, 2018, Walker criticized the credibility of Senate Minority Leader Charles E. Schumer of New York and three Democratic members of the Senate Judiciary Committee. He characterized the opposition strategy as an “unfair, vicious, search-and-destroy mission against Judge Kavanaugh.”

“On the other hand,” Walker added, “what we’ve seen from Sen. Mitch McConnell, I think, has been his finest hour. He has stood firm for Judge Kavanaugh. And the same has been true for President Trump.”

Senate Majority Leader Mitch McConnell, R-Ky., makes his way through the Capitol for a television interview before the vote to confirm Brett Kavanaugh to the Supreme Court on Oct. 6, 2018. (Bill Clark/CQ Roll Call)

The Senate voted 50-48 to confirm Kavanaugh later that day. And five days later, Walker met with Kentucky Republican Sen. Rand Paul about his possible nomination to the Western District of Kentucky. Walker would later tell the Judiciary Committee that nobody from the offices of McConnell, Paul or the Trump administration advised him that the Kavanaugh interviews would help his own nomination to be a federal judge.

The White House interviewed Walker in March 2019 for the role, and McConnell accompanied Walker to the Oval Office to meet Trump. The White House called him that same month to say Trump intended to move forward with the nomination.

Question of experience

Walker’s district court appointment ran into some opposition of its own based on one major issue: his lack of experience in a courtroom.

He is one of nine Trump judicial nominees to get a “not qualified” rating from the ABA, each for their own reasons. None of President Barack Obama’s nominees received that rating.

Republicans have used the ABA’s ratings to praise judicial nominees when they are favorable, but often have criticized the group as having a left-leaning political bias when the reviews come up critical of a nominee’s qualifications.

The ABA wrote that Walker has “great potential to serve as a federal judge,” but Walker’s background has “a very substantial gap, namely the absence of any significant trial experience.”

Walker has “significantly less” than the 12 years of experience in the ABA’s criteria for a nominee to professionally manage a courtroom, the group wrote, and “it was challenging to determine how much of his 10 years since graduation from law school has been spent in the practice of law.”

Nonetheless, McConnell introduced Walker at his confirmation hearing as “unquestionably the most outstanding nomination I’ve ever recommended, in the course of my career in the Senate, to presidents to serve on the bench in Kentucky.”

“In the courtroom, Justin is known for immersive preparation, fervent advocacy for his clients and all-around excellence at trial and appellate litigation,” McConnell said.

Under questioning minutes later from Democrats, Walker confirmed he has never presented an argument before a jury or handled any bench trials, taken no depositions in federal cases, never submitted a motion for summary judgment, or filed a motion to dismiss.

Justin Walker testifies during a Senate Judiciary Committee hearing on his nomination for U.S. district judge for the Western District of Kentucky along with other judicial nominees on Wednesday July 31, 2019. (Caroline Brehman/CQ Roll Call)

Walker said his legal experience is different than many typical judicial nominees, but pointed to Elena Kagan as someone else who did not have extensive courtroom experience when Obama appointed her to the Supreme Court.

“I have not handled bench trials because the primary focus of my career has been as a teacher of trial process, criminal procedure, evidence, and constitutional law, all with a focus on litigation and judicial decision-making,” he wrote.

Sen. Mike Lee, an outspoken critic of the ABA’s role in evaluating judicial nominees and the Utah Republican whom Walker described as a “good friend,” defended the nominee’s experience at the hearing. Walker comes with a lot of writing experience and that “is every bit as important and in many ways more rare,” Lee said.

Easy confirmation

Walker’s nomination to the Kentucky court avoided becoming a major Senate fight for several reasons, including the intensifying focus on the House-led inquiry and impeachment of Trump.

Home-state senators also are often given great deference over judicial picks that will serve in district courts in their states, as opposed to more rigorous fights over appeals court nominees who will decide cases that come from a number of states.

Walker leapfrogged other nominees to get a floor vote just one week after the Judiciary Committee approved his nomination, a move McConnell generally had reserved for the higher-profile appeals court nominees.

“The Senate majority leader might only get one vote, but I sure don’t mind getting to set the schedule,” McConnell would later say at the investiture.

The Senate voted 50-41 along party lines to confirm Walker in October.

With the Republican majority unlikely to find a compelling reason to buck their leader, the only Democrats to speak against the nomination on the floor were Schumer and Minority Whip Richard J. Durbin of Illinois.

Even then, the criticism fit in the context of Trump’s overall judicial picks. “We have seen too many Trump judicial nominees in recent years who don’t know their way around a courtroom,” Durbin said. “I suspect some of these nominees never even made it through a ‘Law and Order’ episode.”

Schumer said the only reason Walker was nominated for a judgeship “is his membership in the Federalist Society and his far-rightwing views on healthcare, civil rights, and Executive power.”

Democrats, in written follow-up questions, pointed out that Walker endorsed a theory that gun restrictions based on public safety are “precluded by the Second Amendment.” They also pointed to his article about the Supreme Court’s 2012 decision upholding key provisions of the Affordable Care Act as “indefensible.”

Walker called those statements part of the public dialogue as a law professor and added this: “It is vitally important that politics have no role in the courtroom, and if I’m confirmed, it will have no place in mine.”

Conservative approach

McConnell touted Walker in the same way Republicans have for other Trump picks who were criticized as ideological, arguing that their legal approach takes politics out of decisions.

“His thoughtful and deliberate approach fit the mold of a federal judge who — imagine this — will uphold the laws and the Constitution as they are actually written, not as he might wish them to be,” McConnell said before the confirmation vote.

Democratic senators contend that approach to the law seems to almost always end up with Republican-appointed judges on the side of political conservatives on big policy fights that are in the courts.

For example, Democrats and liberal advocacy groups pointed to the previous legal work of Trump appointee Kyle Duncan of Louisiana to air concerns that his views on LGBT rights and abortion rights would color his rulings on the U.S. Court of Appeals for the 5th Circuit, which covers Texas, Louisiana and Mississippi.

Louisiana Republican Sen. John Kennedy on the floor ahead of that April 2018 confirmation vote, cited the ABA’s “well qualified” rating and said Duncan “would call the balls and the strikes based on the rule of law” and “worships the rule of law and who will apply the law as this Congress and the U.S. Supreme Court have dictated.”

Duncan has been involved in two opinions cheered by conservatives and criticized by liberals. In one, Duncan authored a majority opinion in a case where a transgender woman sought to change her name in a court record and asked the 5th Circuit to use feminine pronouns.

In the 2-1 ruling in January that LGBT rights advocates says shows an animus against transgender individuals, Duncan wrote a majority opinion that declined that request to use female pronouns — acknowledging that some other federal courts do so, even among judges on the 5th Circuit — in part because doing so would raise questions about impartiality in cases that “turn on hotly-debated issues of sex and gender identity.”

And this month, Duncan was in the majority in a 2-1 decision to allow Texas officials to shut down abortion clinics in the state as part of the response to the COVID-19 pandemic. Only once abortion clinics appealed to the Supreme Court, pointing out that the Texas order infringed on precedents establishing a constitutional right to an abortion, did the three-judge panel relent and allow non-surgical abortions.

But for Walker, back in the Western District of Kentucky, the short stint on the federal bench hasn’t included many opportunities for a ruling that would make such a splash — until an issue fell in his lap one week after his announced nomination to the D.C. Circuit.

A Christian center in Louisville filed a civil case April 10 on the hot-button legal topic of religious freedom, and the court’s case management system randomly assigned it to Walker.

On Fire

Walker did not let the opportunity pass.

On Fire Christian Center, after business hours on April 10, sought a temporary restraining order to stop the city of Louisville from enforcing any COVID-19 public health prohibition on drive-in church services. The center argued that the city’s order violated Kentucky’s Religious Freedom Restoration Act and the Constitution.

McConnell had sent a letter to the Louisville mayor to express concerns on the same issue.

On April 11, without calling city officials or giving them a chance to respond, Walker issued a 20-page memorandum opinion, with 86 footnotes. It starts with a recounting of the history of religious freedom and persecution in America from the arrival of pilgrims in America, to slave owners, the Latter-day Saints driven to Utah, bigotry toward Roman Catholics and the Ku Klux Klan membership of the late Supreme Court Justice Hugo Black and the late Senate Majority Leader Robert C. Byrd, D-W.Va.

And Walker concludes the opinion by stating that, while it seeks to explain his decision, the Christians of On Fire “owe no one an explanation for why they will gather together this Easter Sunday to celebrate what they believe to be a miracle and a mystery.”

“True, they can attempt to explain it. True, they can try to teach. But to the nonbeliever, the Passion of Jesus—the betrayals, the torture, the state-sponsored murder of God’s only Son, and the empty tomb on the third day—makes no sense at all,” Walker wrote.

“And even to the believer, or at least to some of them, it can be incomprehensible as well. But for the men and women of On Fire, Christ’s sacrifice isn’t about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord is the reason they believe He was and is there for us. For them, for all believers, ‘it isn’t a matter of reason; finally, it’s a matter of love.’”

The opinion’s language was, to some legal observers on both sides of the political spectrum, over the top. And, as one member of the Federalist Society pointed out, it was probably completely unnecessary.

Louisville Mayor Greg Fischer said there were no planned enforcement actions against drive-in church services, and city officials twice attempted to contact Walker to present evidence about that. The city has since filed a motion to undo the restraining order in part because “there is no order from Mayor Fischer to enjoin.”

Walker could have simply denied the restraining order as moot if he had gotten Fischer’s representation that there would be no enforcement action, Josh Blackman, a professor at the South Texas College of Law in Houston and member of the Federalist Society, wrote in a blog post.

“Had the District Court held a 15 minute telephonic status conference, any doubts about the proposed enforcement could have been resolved,” Blackman wrote. “Ultimately, I think the District Court reached the right result, but made numerous, unforced errors along the way.”

Walker’s opinion, however, preceded a Justice Department intervention in a similar Mississippi case on the side of a church. And it drew praise from a different type of audience.

“Grateful for this strong, eloquent ruling defending Kentuckians’ religious liberty from Judge Justin Walker, @POTUS’s outstanding nominee for the D.C. Circuit,” McConnell tweeted. “Of course church parking lots cannot be singled out with unfair standards that differ from other establishments.”

That tweet came just a month after, at that investiture ceremony, Walker recounted the story about his mother, the McConnell yard sign, and the importance of the 1994 election.

“I gotta hand it to you, Mom,” Walker said, looking into the audience. “It has been extremely important to me that Kentucky’s senior senator is Mitch McConnell.”