WASHINGTON — President Donald Trump’s nominee to the most influential federal appeals court clashed with Democrats over his past comments about the Affordable Care Act, while Republicans praised his recent ruling allowing limited Easter church services during the coronavirus pandemic.
Judge Justin Walker, a protégé of Senate Majority Leader Mitch McConnell, R-Ky., and Supreme Court Justice Brett Kavanaugh, faced criticism at Wednesday’s confirmation hearing over his remarks two years ago that rulings upholding the ACA were “indefensible” and about jokes he made at the law’s expense at a ceremony in March marking his entry onto the federal bench.
Republicans are pushing to elevate Walker to the U.S. Court of Appeals for the District of Columbia Circuit — a promotion that Democrats decry as too quick for the 37-year-old after just six months as a district judge in Kentucky.
Democrats pointed to the early March ceremony in which Walker spoke before a crowd that included McConnell, Kavanaugh and former Supreme Court justice Anthony Kennedy, for whom Walker served as law clerk when Kennedy was in the minority in a ruling upholding the ACA.
Walker defended his comments in March — that the “worst words” he ever had to deliver to Kennedy was that Chief Justice John Roberts sided with the liberal bloc, tipping the case — as a lighthearted joke trying to praise someone he considered a mentor.
“He has been an invaluable mentor and friend to me since I clerked for him in 2011 and 2012,” Walker said of Kennedy. “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, tongue in cheek allusion to the reality that no Supreme Court justice likes being in the dissent.”
Sen. Dianne Feinstein of California, the top Democrat on the committee, said health care groups have raised concerns that Walker’s confirmation could “exacerbate the health crisis in this country.”
Wednesday’s hearing came as the coronavirus played a central role in the hearing, both physically and in terms of Walker’s legal background.
Rather than the usual cramped committee hearing room, on the second floor of the Dirksen Senate Office Building, the Senate Judiciary Committee convened in a large room on the ground floor so that senators and the witness could observe social distancing guidelines. Many senators appeared via video to question the nominee.
And Republicans sought to highlight Walker’s Easter service ruling in Louisville, from Sen. Rand Paul, R-Ky., who introduced him to the panel, to Sen. Lindsey Graham, R-S.C., the chairman who used his first question to ask about the decision.
Last month, Walker blocked Louisville Mayor Greg Fischer, D, from forbidding drive-in church services on Easter to slow the spread of the coronavirus, a decision hailed by McConnell and other conservatives.
“I had to make a decision and I had to make a decision quickly so that people could know on Saturday whether they could go to church on Easter Sunday and looking at the law. It seemed to me that the free exercise clause of the First Amendment prohibited the action that the mayor was taking,” Walker told Graham.
He acknowledged Wednesday that his decision, coming days after his nomination to the D.C. circuit, was a long opinion because of the pandemic. “It was a momentous and even severe thing for a court to enjoin a mayor in the midst of this terrible pandemic, when the mayor is asserting that his actions could save lives,” he said.
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 received a surprise boost late Tuesday when the American Bar Association reversed its initial “Not Qualified” rating during his 2019 confirmation process for the post in the lower trial court, instead deeming him “Well Qualified” for this more prominent post.
The ABA said that its switch 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.”
The ABA said that although a nominee should have 12 years of experience in the practice of law, Walker’s varied accomplishments offset concerns about his brief time.
In remarks on the Senate floor Wednesday, McConnell highlighted Walker’s decision and the ABA rating.
“In the span of just a couple of weeks, almost simultaneously, Judge Walker has won praise from religious freedom advocates — freedom advocates nationwide and the approval of the ABA, which Democrats call the gold standard,” McConnell said. “That illustrates the kind of impressive individual that the committee is considering this morning.”
Walker previously served as a law clerk for Kavanaugh, when he served as a judge on the D.C. Circuit, and then for Kennedy before his retirement.
Kennedy was replaced by Kavanaugh after a 2018 confirmation battle that included allegations of sexual assault when Kavanaugh was a high school student, an accusation he denied.
Both Kennedy and Kavanaugh recommended Walker to Trump, and in early March, Kavanaugh flew to Kentucky, along with McConnell, for an investiture ceremony for the senator’s protégé.
At the ceremony, Walker recalled that as an 8-year-old, he asked his mother why they had a lawn sign for McConnell during the 1994 election.
“My mom said, ‘We have this yard sign because this election is important,’ ” Walker said. “I got to hand it to you, Mom, it has been extremely important to me that Kentucky’s senior senator is Mitch McConnell.”
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Democrats have blasted McConnell’s decision to bring the Senate back into session without a legislative agenda focused on battling the coronavirus pandemic, accusing him of instead using the time to advance Walker, who grew up in Kentucky and whose family has known the majority leader for decades.
“Coming back for Mitch McConnell’s former intern to be promoted to the second-highest court in the land doesn’t fit the description of a national emergency,” Sen. Dick Durbin, D-Ill., a senior member of the Judiciary Committee, said Monday just after the Senate convened its first full session in nearly six weeks.
If confirmed, Walker would not tip the ideological balance of the D.C. court, which considers many of the most contentious constitutional clashes involving the federal government, sometimes having the final word on key legal matters if the Supreme Court does not take up the case.
Walker would replace retiring Judge Thomas Griffith, 65, who issued a statement Tuesday declaring that he faced no political pressure to step down so that someone much younger could be confirmed to the influential court.
The “sole reason,” Griffith said, was his wife’s health and the need to care for her, a move he decided on last June and kept private among his family, law clerks and close friends.
For more than three years, McConnell has moved at a rapid tempo to fill the judicial openings inherited by Trump after the GOP Senate leader refused to act on dozens of President Barack Obama’s nominees, most notably Supreme Court nominee Merrick Garland, who has served on the D.C. Circuit since 1997.
McConnell has vowed to leave no vacancy behind as the president faces reelection this November and Senate Republicans face the risk of losing control of the chamber.
McConnell has paid particular attention to the nation’s appellate courts, one step below the Supreme Court where the vast majority of cases stop. Trump has 51 circuit court appointees, which translates to 1 out of every 4 appellate judges. McConnell says the circumstances are different now because both the Senate and the White House are of the same party, which was not the case four years ago.
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The Washington Post’s Ann Marimow contributed to this report.