WASHINGTON — A divided Senate on Thursday confirmed President Donald Trump’s nominee for the U.S. Court of Appeals for the D.C. Circuit, elevating a young conservative and a protégé of Supreme Court Justice Brett Kavanaugh to the powerful bench.
The vote for Judge Justin Walker was 51 to 42 with members of the Democratic caucus and Sen. Susan Collins, R-Maine, opposing the nominee.
In less than four years, Trump has decisively reshaped the courts for decades with conservative judicial nominees. Walker is 38, and the president’s 199th choice to be installed on a federal court.
The vote Thursday underscored that although the nation is gripped by the triple crises of a pandemic, a recession and civil unrest over racial injustice, Senate Majority Leader Mitch McConnell, R-Ky., and Republicans have been undeterred in ensuring confirmation of the president’s court choices.
Filling court vacancies is even more crucial for the party five months head of elections with the presidency and Senate majority at stake. Last month, Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., urged federal judges who are in their mid-to-late 60s to step aside so Republicans, increasingly nervous about holding the majority in November, can fill the vacancies now.
Walker, who joined the district court bench in Kentucky in October, would take a seat on the appeals court with powerful backers: He served as a law clerk for Kavanaugh and then-Justice Anthony Kennedy. The high-profile appeals court has been a pipeline for nominees to the Supreme Court, handles major clashes between Congress and the White House, and considers challenges to administration policies.
During Kavanaugh’s bitter confirmation process, Walker was out front in media interviews, defending the judge who faced an allegation of sexual assault when Kavanaugh was a high school student, an accusation he denied.
McConnell, who knows Walker’s grandfather and first met Walker when he interviewed the future majority leader for an article for his high school newspaper, promoted his nomination behind the scenes.
McConnell said Thursday that with Walker’s confirmation “we will not just be promoting a widely-admired legal expert and proven judge to a role for which he is obviously qualified. We’ll also be adding to a time-honored tradition of finding men and women from all across the country to help ensure that this enormously consequential bench here in our nation’s capital is refreshed with talent from all parts of America.”
Senate Minority Leader Chuck Schumer, D-N.Y., criticized Walker’s nomination as part of a pattern in the Senate of fast-tracking young, inexperienced attorneys who lawmakers characterized as “hostile” to the 2010 Obama-era health-care law and civil rights.
“The temerity of doing that. He is just on the court for a few months, but is friends with Leader McConnell, so he gets rushed to this very high court without the necessary experience and maturity of judgment,” Schumer said on the Senate floor.
At a Senate committee hearing on his nomination, Walker faced criticism over his remarks two years ago that court rulings upholding the Affordable Care Act were “indefensible.” He also defended comments he made at his formal swearing-in ceremony to the district court in March. The ceremony was attended by McConnell, Kavanaugh and Kennedy, for whom Walker served as a law clerk in 2011 and 2012.
Walker referred then to his time as a law clerk to Kennedy and the “worst words” he ever had to deliver to the justice about Chief Justice John Roberts Jr.’s decision to side with the liberal justices to uphold the health-care law.
Walker told senators last month that the remarks were meant as a lighthearted joke.
“It was not meant as anything more than a reference to the dissent that he wrote, and again, a bit of a tongue-in-cheek allusion to the reality that no Supreme Court justice likes being in the dissent,” he said.
Schumer said he would like McConnell “to go home to Kentucky and tell the citizens of Kentucky why he nominated someone who wants to repeal our health-care law when the COVID crisis is hurting people there as it is everywhere else.”
Collins, who is facing a tough reelection bid in Democratic-leaning Maine, said in a statement Wednesday that she opposed Walker’s nomination over comments he made at his investiture ceremony for the district bench. Responding to critics of Kavanaugh, Walker promised to “not surrender while you wage war on our work.”
“While Judge Walker is entitled to hold whatever personal views he chooses, his ideological comments on the very day he was formally installed as a federal judge — about winning and losing the courts and a war against those who hold views that are different from his own — prevent me from supporting his elevation to the second highest court in the land,” said Collins, who had voted to confirm Walker as district judge in October.
Other Republicans have highlighted Walker’s recent district court ruling in which he blocked Louisville Mayor Greg Fischer, a Democrat, from forbidding drive-in church services to slow the spread of the coronavirus. In that opinion, Walker wrote that Fischer had “criminalized the communal celebration of Easter,” adding that Fischer’s decision was “beyond all reason.”
Walker’s nomination got a boost when the American Bar Association reversed its initial “not qualified” rating during his 2019 confirmation process for the district court, and instead announced Walker “well qualified” for the more prestigious position.
Although the ABA typically says a nominee should have 12 years of experience in the practice of law, the organization said its change in position came from the differences between the courts, with the appellate court post placing less emphasis on trial experience and instead a “high degree of legal scholarship, academic talent, analytical and writing abilities, and overall excellence.”
Walker will replace retiring Judge Thomas Griffith, who was nominated by President George W. Bush. Walker would not change the ideological balance of the court, which now includes two Trump nominees, Gregory Katsas and Neomi Rao. Cases pending before the court include House lawsuits over a subpoena for testimony from former White House counsel Donald McGahn and another to halt the Trump administration’s spending on the president’s signature southern border wall.
— — –
The Washington Post’s Ann E. Marimow and Seung Min Kim contributed to this report.