United States Court of Appeals for the D.C. Circuit
Alliance for Justice strongly opposed the confirmation of Justin Walker to the D.C. Circuit. Justin Walker is only 37 years old and was deemed unqualified to serve as a district court judge by the ABA just five months ago. Walker believes the courts should invalidate the Affordable Care Act and take away health care from millions. He wants to rejuvenate long discarded doctrines to severely limit the federal government’s ability to protect civil rights, workers, consumers, and the environment. And at a time when President Trump has repeatedly acted above the law, Walker’s extreme views of unchecked presidential authority are particularly dangerous. With almost unanimous Republican support, on June 18, 2020, the Senate confirmed Walker to the D.C. Circuit.
Alliance for Justice opposes the confirmation of Justin Walker to the D.C. Circuit. Justin Walker, 37, was deemed unqualified to serve as a district court judge by the American Bar Association (ABA) just six months ago and has extremely limited legal experience. Walker believes the courts should invalidate the Affordable Care Act and take away health care from millions. He wants to rejuvenate long discarded doctrines to severely limit the federal government’s ability to protect civil rights, workers, consumers, and the environment. At a time when President Trump has repeatedly acted above the law, Walker’s extreme views on unchecked presidential authority are particularly dangerous.
On April 3, 2020, President Trump announced his intent to nominate Justin Walker to the United States Court of Appeals for the District of Columbia Circuit. Walker would fill a vacancy being created by the retirement of Judge Thomas B. Griffith, a George W. Bush appointee (his confirmation would maintain the composition of active members on the court at seven Democratic appointees and four Republican appointees). Alliance for Justice strongly opposes Justin Walker’s confirmation.
The D.C. Circuit is considered the second most powerful court in the country. It handles some of the most complex and sensitive litigation. It oversees the actions of federal agencies on topics like the environment, consumer protections, workers’ rights, banking regulations, and other vital issues. As Chief Justice John Roberts, himself a former member of the D.C. Circuit, explained in a 2005 lecture titled “What Makes the D.C. Circuit Different,” the court has a “special responsibility to review legal challenges to the conduct of the national government.” And, it is critical in ensuring that all government officials, including the president, are subject to the rule of law. According to former Judge Patricia Wald, “Aside from the U.S. Supreme Court, it resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country.” Despite its name, its decisions reach far beyond the District of Columbia. The judges there touch the lives of every American.
Four of the current nine justices on the Supreme Court – Chief Justice John Roberts, and Justices Clarence Thomas, Ruth Bader Ginsburg and Brett Kavanaugh – were previously judges on the D.C. Circuit. Other legendary jurists who have made significant contributions to the law, the rights, and the well-being of every American have sat on the court, including Patricia Wald, David Bazelon, and Harold Leventhal. Justin Walker’s nomination is an insult to these legal giants and the remarkable institution where they served.
Indeed, there are countless seasoned Republican lawyers who would be qualified to sit on the D.C. Circuit, the nation’s “second highest court.” Unfortunately, Walker, a 37 year old rated “not qualified” by the American Bar Association when confirmed to the district court just six months ago, is not one of them.
Rather, Walker is a Mitch McConnell loyalist being rewarded for dutiful service to the Republican Party (including 162 media appearances defending Brett Kavanaugh). He has extreme views on unchecked executive power. He wants to weaken gun safety measures, including bans on assault weapons. He has shown contempt for public education. And, he would use his position on the powerful D.C. Circuit to weaken civil rights, worker, consumer, and environmental protections. He has been vehement in his opposition to the Affordable Care Act (“ACA”) and is committed to using the courts to do what Trump, McConnell, and the Republican Party could not do through Congress— take away access to quality health care from millions, including people with preexisting conditions.
Trump himself explicitly stated he was looking for judicial nominees who are hostile to the Affordable Care Act, tweeting, “My judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.” Walker, who praised Brett Kavanaugh for writing a “roadmap” to judges to invalidate the law and called Chief Justice Roberts’s opinion upholding the Act “indefensible,” and “catastrophic,” meets that test.
Walker’s confirmation could literally threaten the health of millions precisely when they need access to quality health insurance the most.
Walker Lacks the Experience to Serve on the D.C. Circuit and was Nominated Because of His Loyalty to Mitch McConnell
Walker received his BA from Duke University in 2004 and his JD from Harvard Law School in 2009. Prior to law school, he was a speechwriter for Secretary of Defense Donald Rumsfeld. As far back as 2004, when he was barely in his twenties, Walker identified as a “tax-cutting, Iraq-invading Republican.” Walker was a law clerk for Brett Kavanaugh on the D.C. Circuit and then for Justice Anthony Kennedy. Until his confirmation to the district court on October 24, 2019, he was an associate professor at the University of Louisville’s Brandeis School of Law.
Walker is just 37 years old and has only been a district court judge for six months. In that time, he has presided over no trials that have gone to verdict or judgment. He is the youngest nominee to the D.C. Circuit since 1983. Like many of Trump’s nominees, he is an active member of the Federalist Society and has been paid thousands of dollars for appearances at its events.
Prior to his confirmation to the District Court for Western District of Kentucky, he received a “not qualified” rating from the American Bar Association. By his own admission, he had never “served as sole or chief counsel in any case tried to verdict or judgment.” Only once had he been either an “associate counsel at a federal criminal jury trial” or “taken an expert deposition.” The Trump Administration is known for valuing conservative media punditry over other credentials for high office. True to form, Walker’s qualifications to be a federal trial judge apparently consisted of at least 161 more media appearances defending Brett Kavanaugh than federal jury trials or expert depositions.
Indeed, Walker owes his loyalty to Mitch McConnell who previously hand-picked Walker for the District Court. McConnell told the Judiciary Committee that he knew Walker’s grandfather, and when Walker was in high school, as a favor he met with Walker for a paper he was writing for school, although McConnell “hadn’t routinely done high school interviews.” Then, in January, 2020, McConnell accompanied Walker to a meeting with President Trump to discuss Walker’s potential nomination to the D.C. Circuit, a conversation that covered the impeachment trial.
On March 13, 2020, while much of the country was already engaging in social distancing to protect their communities, and the House of Representatives was working to pass the Families First Coronavirus Response Act, Mitch McConnell recessed the Senate so he could fly with Justice Kavanaugh to Kentucky for a victory lap at Walker’s investiture as a district court judge. The health crisis was not lost on the attendees at the investiture. Indeed, it was referenced by Walker himself when he noted that, because of the coronavirus, the crowd was small enough he could thank everyone personally. McConnell’s absence in Washington delayed Senate action until the following week.
Walker believes a good judge is not someone who will fairly, dispassionately and without bias apply facts to law, but someone who will be a “warrior” for conservativism.
It is abundantly clear from his record that Walker cannot credibly assert objectivity as a jurist. Indeed, Chief Justice John Roberts has articulated platonic ideals of a judge (which he himself has certainly not lived up to): Roberts was emphatic when nominated: “I have no agenda.” More recently, Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to equal right to those appearing before them.” Walker’s nomination to the D.C Circuit makes a mockery of those principles.
As noted, Walker was a vocal supporter of Brett Kavanaugh during the period up to his confirmation to the Supreme Court. When right-wing critics questioned Kavanaugh’s conservative bona fides, Walker was trotted out on Fox News and other media outlets as a character witness, where he made clear that Kavanaugh was a “warrior” for “conservative legal principles” who would “not go wobbly.” He predicted:
a conservative revolution as big as the Reagan Revolution . . . Issues like affirmative action, school prayer, gun rights, and abortion will see drastic changes. I predict an end to affirmative action, an end to successful litigation about religious displays and prayers, an end to bans on semi- automatic rifles, and an end to almost all judicial [decisions allowing abortion]. This change will give Donald Trump the most conservative judicial legacy of any Republican in history, by far.
Later, after Dr. Christine Blasey Ford made credible allegations that Kavanaugh had sexually assaulted her, Walker continued to defend his former boss. Despite Dr. Ford’s testimony plus corroborating evidence, Walker claimed that Dr. Ford was “mistaken” about her sexual assault. Moreover, he directly attacked the integrity of Democratic senators, including Senators Richard Blumenthal and Maize Hirono for defending Ford, claiming they could not be trusted in the matter.
Even after becoming a judge, Walker continued to viciously lash out at critics. At his investiture, Walker showered Kavanaugh with praise as if it was Kavanaugh who had been the victim, not the women who accused him of sexual assault:
Justice Kavanaugh, what can I say that I haven’t already said on Fox News? 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 Kavanaugh’s America, we will not surrender while you wage war on our work, or our cause, or our hope, or our dream.j
Rather than celebrating objectivity, Walker, who previously had celebrated Kavanaugh for being a “warrior” said he will “not surrender” in the “war” he sees being fought. Rather than celebrating impartiality and nonpartisanship, Walker, at his investiture, referenced those who opposed his own confirmation with a sarcastic, “No hard feelings,” which was accompanied by appropriate laughter from his audience of supporters. And, he repeatedly referred to his own values as ones progressives might call “deplorable,” directly aligning himself with Trump. He continued, “we are winning, but we have not won.”
In his most notable decision during his brief tenure as a judge, Walker demonstrated just how far he was willing to go to make political statements from the bench.
In On Fire Christian Center, Inc. v. Greg Fisher, Walker issued an ex parte temporary restraining order against the City of Louisville “from enforcing, attempting to enforce, or otherwise requiring compliance with any prohibition on drive-in church services at On Fire.” This order stemmed from the Mayor’s “strong suggest[ion]” that churches not host-in-person or drive-in services Easter weekend because the mayor “wanted to keep them and the city safe amid the coronavirus pandemic.”
Regardless of the merits of the holding, his process as a judge is telling. Walker issued the order ex parte and did not even give the City of Louisville an opportunity to respond. Nor was it clear an order was even necessary.
The lawsuit was based on the mayor’s “suggestion.” The mayor, moreover, made clear there was no planned enforcement action. As Mayor Greg Fischer said, “I regret that the judge did not allow us to present evidence that would have demonstrated there has been no legal enforcement mechanism communicated….We attempted twice to contact the court.” Also, as Governor Andy Beshear subsequently stated when Walker did allow legal filings after his ex parte order, “In short, no, the March 19, 2020 Order prohibiting mass gatherings does not prohibit drive-in religious services.”
As Joseph Gerth, a Louisville journalist noted, “the strangest thing is that young Walker did all this without even talking to the city’s lawyers. Had he done that, he would have learned that Fischer hadn’t signed any sort of executive order and had no plans to take action against the churches that chose to conduct drive-in church services. He would have learned there was nothing for the church to sue over to begin with.” As conservative law professor Josh Blackman similarly emphasized, had Walker “held a 15 minute telephonic status conference, any doubt could have been resolved. [Walker] could have simply denied the TRO as moot on the Mayor’s official representation that there would be no enforcement action.”
Instead, Professor Blackman noted, “Walker wrote a 20 page decision with 86 footnotes that read[s] like something of a law review article. It provided a thorough exegesis of religious freedom from biblical times . . . to the KKK. None of this discourse was necessary to decide the narrow question.” Blackman emphasized that while judges are supposed to generally avoid constitutional issues where possible, Walker addressed the First Amendment “head-on,” even though unnecessary to decide the case (Kentucky statutory law “provided all the relief the Plaintiff’s sought”). As Gerth, the Louisville journalist, wrote, Walker’s “screed…looked more like a red meat campaign speech than a legal document.”
Before he was elected, Trump explicitly stated he would look for judicial nominees who are hostile to the ACA. Walker easily passes that test, and his nomination to the D.C. Circuit demonstrates that Trump remains committed to overturning the ACA.
Walker has repeatedly said he believes the ACA is unconstitutional. In an article defending Brett Kavanaugh, Walker called the Supreme Court’s decision to uphold the ACA “indefensible,” and “catastrophic.” He also praised Kavanaugh for his “thorough and principled takedown” of the ACA, and for providing a “roadmap” for Supreme Court justices “who said Obamacare was unconstitutional.”
When Senator Feinstein asked Walker to explain these remarks, and whether he still believed them when the Committee was evaluating his nomination to the district court, Walker refused to answer. He said “I understand that the role of an academic and a citizen engaged in the political process is different than the role of a judge or judicial nominee. The canons of judicial conduct preclude me, in my role as a judicial nominee, from going beyond what was said in the 2018 article.” Apparently, Walker’s understanding of the judicial canons only meant that it was the public and senators voting on a lifetime appointment that could not be privy to his views on access to quality health insurance. As a judge with no case or controversy before him, he has felt no such reservation.
Speaking at his investiture on March 13, 2020 – in the middle of a pandemic – he doubled down on his antipathy of the Affordable Care Act. Describing his clerkship with Justice Kennedy, Walker remarked that the “worst thing” you could hear from Justice Kennedy was “the Chief Justice thinks this might be a tax.” This was a reference to NIFB v. Sebelius, where the Court largely upheld the ACA on the grounds that the penalty imposed by the individual mandate was a tax.
Tragically, the stakes for the health and well-being of millions of people are all too real. Indeed, Walker’s nomination comes at a time when the nation is facing a massive pandemic that jeopardizes the lives, health, and economic well-being of millions.
It is, therefore, remarkable that during this worldwide health crisis, on March 22, the president doubled down on his support for a lawsuit challenging constitutionality of the entire Affordable Care Act (ACA). The very same day that the United States confirmed 10,351 more cases of the coronavirus (bringing the total number to 34,000) and reported 111 virus related deaths (bringing the total number to 413), the President urged the courts to “terminate” the ACA.
According to Protect Our Care, if the lawsuit is successful, 20 million people could lose health insurance; 135 million people with preexisting conditions – including cancer, pregnancy, and diabetes – will lose desperately needed protections; and nearly 12 million seniors will pay more for prescription drugs. Given the vulnerability of these individuals to COVID-19, the last thing we should do is make it harder for them to access the care they need. As the American Medical Association and other physician groups made clear, if successful the lawsuit “would have a devastating impact on doctors, patients, and the American health care system as a whole.”
Walker also threatens the health care of women. He praised Kavanaugh for a dissent arguing that the Obama Administration’s contraceptive-coverage policy, ensuring that employer-based insurance policies made the full range of birth control options available to employees, was unconstitutional, a position that would allow employers to restrict access to contraception for their employees.
On January 8, 2020, Justin Walker, accompanied by Mitch McConnell, met with Donald Trump. We know that President Trump has demanded loyalty from officials in the justice system. As he told James Comey, “I need loyalty, I expect loyalty.”
In the meeting, Walker, McConnell, and Trump discussed impeachment. It would certainly not be lost on any of the participants that Walker was being considered for a position on a court, the D.C. Circuit, that has a docket already full of cases concerning Trump’s flagrant attacks on the rule of law, extreme views of presidential power, and efforts to gut Congress’s oversight authority (including when exercising its impeachment power, which was the very topic of their conversation).
Nor is it likely coincidental that Trump, according to Senate Judiciary Committee questionnaires, has met with just three of the 55 appellate nominees he’s selected: his first nominee, Amul Thapar (also a friend of Mitch McConnell’s), and two of his nominees to the D.C. Circuit, Neomi Rao and Justin Walker. His other nominee to the Circuit, Greg Katsas, was a known quantity to the president, having worked in the White House Counsel’s office prior to his nomination. Donald Trump has a great deal personally invested in decisions of the D.C. Circuit; it is where “loyalty” would be most crucial.
Walker has an extreme record on executive power. He was dismissive of the Mueller investigation, calling it “much ado about nothing” during an appearance on Fox News. In addition, after President Trump fired James Comey for investigating Trump campaign ties to Russia, Walker argued that the FBI should not be independent of the president. In an essay titled “FBI Independence as a Threat to Civil Liberties,” Walker wrote that “the FBI Director should not think of himself as the nation’s protector; instead, he must think of himself as an agent of the President.” Senator Hironio asked Walker if it would be acceptable for a president to ask the FBI Director to “go easy” on his political allies. Walker refused to answer.
This was not a hypothetical question. Trump now claims, “I have an Article II where I have the right to do whatever I want as President.” He said as recently as April 13, 2020, “When somebody’s president of the United States, the authority is total. And that’s the way it’s got to be. It’s total.” Among those rights, the president believes, is for law enforcement to exist to serve his personal interests, not those of the nation. Trump called himself the country’s “chief law enforcement officer.” He made it abundantly clear that he thinks it is appropriate for him to discuss individual investigations with the attorney general. He asserted that he has an “absolute right” to intervene in criminal cases, undermining the important principle that law enforcement be insulated from politics.
At the same time, Attorney General Barr has devoted the full resources of the Department of Justice (DOJ) to shield Trump from legal exposure, brazenly intervened in criminal cases involving Trump’s allies, and weaponized the DOJ against Trump’s foes.
To appreciate the dangerousness of Trump’s attitude, one need only look at his most recent signing statement for the coronavirus stimulus package where he indicated that he did not intend to comply with congressional oversight of the distribution of funding.
In a 2019 symposium discussion, Walker made clear his hostility to public education. He bemoaned the “billions of taxpayer dollars” spent on maintaining “a minimum level of funding to offer an adequate education for all students.” He criticized the right to quality public education found in many state constitutions. For example, he criticized Ohio’s constitutional responsibility to provide a “thorough and efficient” system of public schools. William Phillis, executive director of Ohio Coalition for Equity and Adequacy of School Funding, made clear that “there are over 1,000 new school buildings in Ohio that wouldn’t be there without the ‘thorough and efficient’ provision” of the state constitution and key court decisions enforcing the provision that Walker opposes.
Remarkably, Walker equates “the African-American minority in segregated schools” in the 1950s with “the wealthy minority in affluent schools” in the 1990s, claiming that “the latter is…a fairly popular class to take political aim at.” Seemingly without irony, Walker uses the language of minority rights to complain that the right to education contained in state constitutions — as well as increased spending on public education — would infringe upon the liberty of “the minority of individuals who pay the majority of income taxes.”
Walker has denigrated labor unions, claiming that it is hypocritical to both support labor unions and advocate for “people power” over “special interest power.” And, as mentioned, Walker has limited legal experience as a practicing attorney. It is, therefore, notable that one of the few cases he did work on involved representing a mining corporation in a dispute with the United Mine Workers of America International Union. In the case, the National Labor Relations Board found that Rockwell Mining Company violated the National Labor Relations Act “by refusing to recognize, bargain with, and provide. . .information” to the union “as the duly certified collective-bargaining representative” of mine workers at Rockwell’s mine in Wharton, West Virginia.
The NLRB, including Republican members Marvin Kaplan and William Emanuel, had denied Rockwell’s challenge to union certification, a position Walker disagreed with.
In representing Rockwell Mining, Walker fought to undermine the collective bargaining rights of employees to achieve better wages, benefits and working conditions. On November 19, 2019, the D.C. Circuit upheld the Board’s decision.
Relevant to Walker’s anti-labor position is his praise of Kavanaugh’s dissent in Agri Processor Co. v. NLRB. There, Agri Processor employees in Brooklyn decided to join a union to improve their working conditions. When their employer argued that the union vote was invalid due to some of the workers’ immigration status, Kavanaugh sided with the company. At the D.C. Circuit, Kavanaugh dissented from a decision affirming that the company needed to bargain with the union. The majority noted arguments that the National Labor Relations Act (NLRA) “helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment.” Kavanaugh, though, would have agreed with the company that undocumented immigrants are not “employees” under the labor law and were therefore ineligible to vote in “the tainted union election.” The majority opinion harshly criticized Kavanaugh’s dissent as ignoring the plain language of the NLRA and as a “misread” of Supreme Court precedent, noting concerns about “creat[ing] a subclass of workers.”
Walker is a threat to the ability of elected officials to protect the American people from rampant gun violence. Indeed, in praising the nomination of Brett Kavanaugh to the Court, Walker was exuberant at the prospect that Kavanaugh’s nomination would see the “end to bans on semi-automatic rifles.” When Walker clerked for him, Kavanaugh took an extremely narrow view of the lawfulness of modern-day gun safety measures, including bans on semi- automatic weapons, and Walker has praised that decision.
After the Supreme Court’s 2008 ruling in District of Columbia v. Heller, the District of Columbia updated its firearm regulations to prohibit possession of certain military-style semi-automatic rifles and to require registration of firearms. When the D.C. Circuit upheld several of those gun safety measures, Kavanaugh dissented from his Republican appointed colleagues, finding, “[i]n my judgment, both D.C.’s ban on semiautomatic rifles and its gun registration requirement are unconstitutional under Heller.”
Indeed, during a Fox News interview on September 3, 2018, Walker endorsed a theory that gun restrictions based on public safety are “precluded by the Second Amendment” because of “the decision by the framers to make that balancing choice themselves and to take some of that question out of the democratic process.”
Public Health and Safety
Walker wants to tie the hands of the agencies that Congress has recognized as having the knowledge and experience to enforce critical laws, safeguard essential protections, and ensure the health and safety of the public. This is a particularly dangerous position for someone nominated to the D.C. Circuit, a court where about two-thirds of cases involve the federal government in some civil capacity. It is the last resort for most decisions involving federal agencies.
Indeed, Walker was excited at the prospect of Kavanaugh’s nomination to the Supreme Court precisely because it would undermine federal agencies. Quoting favorably Jonathan Adler, he wrote, “In Brett Kavanaugh, President Trump may not have found a justice to ‘deconstruct the administrative state’ — in Steve Bannon’s formulation — but he has found one who will help bring it to heel.”
In an article titled “The Kavanaugh Court and the Schechter-to-Chevron Spectrum: How the New Supreme Court Will Make the Administrative State More Democratically Accountable,” Walker called for reinvigorating the non- delegation doctrine, which was last used successfully in 1935 by a famously reactionary Supreme Court majority bent on invalidating the New Deal.
Currently, executive agencies are permitted to exercise rulemaking authority pursuant to a valid delegation from Congress. As long as the delegation provides a “sufficiently intelligible principle, there is nothing inherently unconstitutional about it.”
Walker disagrees with this long-established principle of law, arguing that agencies should not be able to exercise such authority, even if Congress properly delegates it. Justice Antonin Scalia himself made clear this position’s radical nature. As he explained, reviving that doctrine would deprive Congress of the authority essential to empower agencies to effectively implement and enforce critical statutes that protect the American people in scores of areas from ensuring financial stability to controlling health hazards. As Scalia noted, “we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law” because “a certain degree of discretion, and thus of lawmaking, inheres in most executive and judicial action.” Walker would flout these principles and preclude Congress from making government work for the American people.
In addition to accepting the non-delegation doctrine, Justice Scalia also accepted the legal principle that gives agencies the authority to determine how they will carry out their mandates when the congressional act governing their actions might be open to different interpretations – referred to as “Chevron deference.” As Justice Scalia noted, “in the long run Chevron will endure and be given its full scope” because “it more accurately reflects the reality of government, and thus more adequately serves its needs.”
Walker disagrees on this point and has expressed hostility towards the decades- old doctrine that is a cornerstone of administrative law. He has criticized the federal government’s ability to regulate corporations and protect consumers, the environment, workers, and more.
Walker has also argued that agencies, including independent agencies that historically have been independent of political management, should have less power to issue public protections and enforce safety standards. He opined that such agencies should no longer be independent. Agencies such as the Consumer Financial Protection Board, the Securities and Exchange Commission, the National Labor Relations Board, and the Occupational Safety and Health Review Commission play critical roles in upholding the rights of consumers, workers, and investors; Walker would be hostile to the protection of these rights
Justin Walker believes a jurist should be a “warrior” for political causes. His actions and statements reveal that he is indeed a zealot who is primarily concerned with promoting conservative causes. None is more dangerous in the middle of a pandemic then his view that the courts should invalidate the ACA and take away health care from millions.
He is not being nominated for his experience, but because he has been loyal to the Republican Party, his condoning Donald Trump’s unchecked power, and because his desire to prevent the federal government from protecting the health and safety of the American people. For these reasons, Alliance for Justice strongly opposes Justin Walker’s confirmation.