The White House has eyed Justin Walker, an ally and protege of Senate Majority Leader Mitch McConnell (R-Ky.), for a seat on the powerful U.S. Court of Appeals for the District of Columbia Circuit since at least early September 2018, according to new documents provided to the Senate Judiciary Committee.
Walker, then a young lawyer who had been working fervently on behalf of Brett M. Kavanaugh’s Supreme Court nomination, discloses that he was contacted by the White House Counsel’s Office that month to see if he was interested in the vacancy on the D.C. Circuit that would open up once Kavanaugh was confirmed by the Senate.
Walker had served as a clerk to Kavanaugh on that appeals court.
He interviewed with White House lawyers for the job on Sept. 10, 2018, but the position ultimately went to Neomi Rao, then the Trump administration’s regulatory czar. Last year, Walker was nominated for a lower court slot — the Western District of Kentucky — amid criticism from Democrats and the nonpartisan American Bar Association that he was not qualified for that position because he lacked the requisite courtroom experience.
Still, he was nominated by President Trump, with heavy influence and support from McConnell, for a promotion to the D.C. Circuit earlier this month. Walker, 37, is the youngest nominee to the D.C. Circuit since 1983, and if confirmed, the first judge to the court from outside Washington since 2005. He has served in his current role for about six months.
His interactions with the White House surrounding his eventual nomination by Trump were detailed in a questionnaire submitted to the Judiciary Committee and obtained by The Washington Post. His confirmation hearing is scheduled for May 6 despite protests from Democrats that the committee’s chairman, Sen. Lindsey O. Graham (R-S.C.), should be holding coronavirus-related hearings instead.
“With so much at stake for health care in our country right now, Republicans shouldn’t be tipping the scales of justice against families’ health care and toward disaster,” Sen. Patty Murray (D-Wash.), the third-ranking Senate Democrat, said in a conference call hosted by Alliance for Justice and other groups working to defeat Walker’s nomination. “Confirming judges who will make it harder for people to get the care they need might be Senator McConnell’s first priority — but it’s the last thing we need right now.”
That has not deterred McConnell, who has made it abundantly clear that confirming lifetime appointments to the courts will be at the top of the agenda once senators return to Washington next week. And Walker, whom the majority leader has known since the judge was a teenager, is among the highest of priorities for McConnell.
Proponents of Trump’s judicial nominees outside the Senate are also heavily focusing on this nomination. Mike Davis, the former chief counsel for the Senate Judiciary Committee, said barring a Supreme Court vacancy this year, Walker’s confirmation battle “will be the biggest judicial fight this year.”
Walker writes in the questionnaire that McConnell reached out to him in late 2019 to see if he was still interested in the D.C. Circuit job “in anticipation of a long-rumored upcoming vacancy.” That opening was ultimately announced in early March, when Judge Thomas B. Griffith, a former Senate counsel who was nominated by George W. Bush, said he would be retiring.
He and McConnell met with Trump in the Oval Office on Jan. 8 to “discuss the vacancy,” Walker writes. He was told by the White House Counsel’s Office on April 2 that he would be nominated, and the pick was announced April 3.
Since then, Walker has attracted more attention with a fiery opinion issued the day before Easter on April 12 that blocked Louisville’s mayor from trying to prevent drive-in church services as a way to stem the spread of the coronavirus — a decision that drew applause from conservatives.
“The Senate will confirm Judge Walker, because he’s already proven himself as a brilliant rising star on the federal bench with his recent ruling smacking down the Louisville mayor for mindlessly attempting to ban drive-up Easter services while permitting drive-up liquor sales,” said Davis, who now leads the Article III Project, an outside group focused on backing Trump’s judicial picks.
In the 20-page opinion, Walker wrote that an “American mayor criminalized the communal celebration of Easter.”
“That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion,” Walker continued in the April 11 opinion. “But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship — and even though it’s Easter.”
Walker’s temporarily restraining order against the mayor and 20-page opinion were issued before the city of Louisville had an opportunity to officially respond in court to the lawsuit from On Fire Christian Center.
In a subsequent statement, Fischer expressed disappointment with the decision. He had urged churches not to host in-person or drive-in services Easter weekend but said there was never a “formal ban” on drive-in religious services.