Even in unpredictable times, the Senate can still count on considering judicial confirmations.
President Trump this week nominated two more judges to sit on influential appellate courts in Washington and New Orleans as he and Senate Republicans work to shift the federal judiciary to the right.
But work to confirm those jurists to lifetime positions is running headlong into obstacles thrown up by the coronavirus pandemic.
The Senate is already on an extended recess as lawmakers shelter in their homes and in Washington, leaving senators and their staff less time and resources to vet judges. And Democrats have balked at both nominees’ past opposition to the legality of the Affordable Care Act at a time when the nation faces a once-in-a-century public-health crisis.
“You have a president who continues to nominate these totally ideologically oriented people as though it’s just business as usual,” said Sen. Mazie Hirono, a Democrat on the Judiciary Committee. “And this is not business as usual. This is a pandemic.”
Trump on Friday announced he planned to nominate Judge Justin Walker to a vacancy on the powerful D.C. Circuit Court of Appeals. Walker, a former intern to Senate Majority Leader Mitch McConnell who clerked for Justice Anthony Kennedy and then-Judge Brett Kavanaugh, has served as a district court judge in Kentucky since the fall.
A few days earlier, Trump elevated Judge Cory Wilson, who sits on the Mississippi Court of Appeals, to a nomination on the 5th Circuit. Trump originally nominated Wilson to a federal district court but gave him the promotion after the previous nominee, Judge Sul Ozerden, failed to gain the support of conservatives on the Senate Judiciary Committee.
“Lifetime appointments to the federal judiciary are among the Senate’s most serious and impactful responsibilities,” McConnell said in a statement on Friday. “I am glad the president continues to send us outstanding nominees whose confirmations will strengthen the rule of law in our country and the future of our Constitution.”
Neither Walker nor Wilson may wait long to see Senate scrutiny. McConnell told conservative radio host Hugh Hewitt this week that “of course we will go back to judges” as he works to fill as many vacancies as possible before the end of Trump’s first term.
The Judiciary Committee typically gets a month to review a nominee’s record after receiving their candidate questionnaire before an in-person hearing takes place. Taylor Reidy, communications director for Chairman Lindsey Graham, said the committee has received Wilson’s paperwork but wouldn’t comment on hearing format.
“The committee will proceed with both nominations as quickly as possible in accordance with its traditional practices,” Reidy said.
Mass gatherings are banned in Washington as local authorities attempt to slow the spread of the contagious coronavirus. Congress is exempt, but committees have taken steps to avoid meeting in full hearings to allow for social distancing between lawmakers, staff, and witnesses.
“Clearly, on something like nominations, you want to be able to ask questions directly of the witnesses,” Hirono said, “so I really don’t know how we’re going to do this unless there’s an all-clear sign and everybody can get back to gatherings and everything else. I just don’t see that coming down the pike any time soon. … I do not view these kinds of proceedings as critical at this point.”
Sens. Chris Coons and Kamala Harris, Hirono’s Democratic counterparts on Judiciary, also balked this week at the notion of confirming Wilson during the pandemic, and progressive groups have expanded that concern to include Walker.
“Are they really going to hold hearings on judicial nominees during this time? … I sort of find that stunningly out-of-touch, at best,” said Christopher Kang, chief counsel of the progressive group Demand Justice.
Mike Davis, president of the conservative Article III Project, suggested moving the hearings out of the committee’s more cramped quarters in the Dirksen Office Building to a larger space like the one in Hart reserved for interrogation of Supreme Court nominees.
“They can come up with ways to spread people out to have enough social distancing to have a hearing,” said Davis, who served as Sen. Chuck Grassley’s chief counsel when Grassley chaired the committee. “And I must say that in the 30 nominations hearings on which I served as the staff lead last Congress, senators socially distance themselves by not showing up.”
Democrats were already unlikely to support either nominee. Walker, 37, was confirmed to his current position on a party-line vote last fall after the American Bar Association determined he was “not qualified” for the post. Democrats at Wilson’s hearing in January focused their questioning on the former Mississippi legislator’s past conservative rhetoric, including frequent mentions on Twitter of “#CrookedHillary” in 2016.
Conservatives quickly came to Walker and Wilson’s defense this week, praising their judicial philosophies and legal education. Wilson has the support of the conservative groups that had rejected Ozerden. Republican Sen. Mike Lee, a member of the Judiciary Committee, said in a statement Friday he “couldn’t be more pleased” that Trump picked Walker, “an unusually gifted lawyer and judge.”
Spokespeople for Sens. Ted Cruz and Josh Hawley, whose opposition doomed Ozerden’s chances of confirmation, said both Republicans “look forward to” examining the nominees’ judicial philosophies at their hearings.
“As the nation emerges from this crisis, we will need these judges more than ever to ensure our laws and constitution are followed,” Carrie Severino, president of the conservative Judicial Crisis Network, said in a statement to National Journal.
“It is stunning that our president … remains committed to taking away health care for millions in the middle of a pandemic, and a central part of that plan is to nominate and confirm individuals who share his contempt for the Affordable Care Act,” said Daniel Goldberg, legal director of the progressive Alliance for Justice.
Democrats have also raised concerns about the nominees’ substantive impact on health care law. Both have in the past challenged the Affordable Care Act’s legitimacy, a question currently pending before the Supreme Court. Democrats amidst the crisis have called for the Trump administration to end its legal challenge to Obamacare.
Wilson if confirmed would sit on 5th Circuit, a frequent forum for challenges to the landmark health care law. The Supreme Court has agreed to consider that circuit court’s decision to rule the individual coverage mandate unconstitutional.
“It is stunning that our president … remains committed to taking away health care for millions in the middle of a pandemic, and a central part of that plan is to nominate and confirm individuals who share his contempt for the Affordable Care Act,” said Daniel Goldberg, legal director of the progressive Alliance for Justice.
Walker has similarly questioned the Affordable Care Act’s constitutionality. At his investiture ceremony last month, Walker bemoaned Chief Justice John Roberts’s decision to side with the high court’s more progressive justices to uphold Obamacare’s individual coverage mandate, and by extension the law itself, while Walker was clerking for Kennedy in 2012.
“The greatest words you can hear from Justice Kennedy are, ‘you’re hired,’” Walker said. “And the worst words are, ‘the Chief Justice thinks this might be a tax.’”
Walker is especially close to McConnell. As that formal swearing-in, McConnell compared his two-decade effort to lure Walker into public service to that of Darth Sidious from Star Wars tracking a young Darth Vader. When Trump nominated Walker to sit on a Kentucky trial court, McConnell ushered him through to confirmation in record time.
“I admit … I may have offered some slight encouragement to help the process along the way,” McConnell said. “The Senate majority leader may only get one vote, but I sure don’t mind getting to set the schedule.”