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The Amateurs and Yes-Men in Trump’s Army of Judges

There’s a simple formula for getting on the judicial bench in the MAGA era.

Samuel Corum/Getty Images

The U.S. Court of Appeals for the District of Columbia Circuit is generally considered to be the second most powerful court in America. By virtue of its location in the nation’s capital, it hears more high-profile cases involving government power than any other federal appeals court in the country. In recent months, D.C. Circuit panels have upheld the House’s effort to subpoena President Donald Trump’s tax returns, rejected its effort to compel impeachment testimony from a former White House counsel, and signed off on the first federal execution protocol in nearly two decades.

That prominence (as well as the scarcity of abortion-rights cases that it hears) makes it a common stepping stone for future Supreme Court justices. Chief Justice John Roberts and Justices Clarence Thomas, Ruth Bader Ginsburg, and Brett Kavanaugh all served on the D.C. Circuit before joining the high court; Bill Clinton also nominated Justice Elena Kagan to it in his second term, but he left office before the Senate acted. Merrick Garland, Barack Obama’s ill-fated nominee to replace Antonin Scalia, was the court’s chief justice at the time. Even Scalia himself had previously served on the D.C. Circuit.

Trump’s latest nominee for the influential court is Judge Justin Walker, who currently serves as a federal trial judge in Kentucky. Walker is an unusual nominee for the D.C. Circuit by any metric: The 37-year-old nominee has been a federal judge for less than six months and graduated from law school just over a decade ago. His nomination speaks volumes about the trajectory of the conservative legal movement—and of the federal courts in the Donald Trump–Mitch McConnell era.

It’s worth noting that federal judges need not follow a certain career or life path to the bench. Kagan, for instance, had never served as a federal or state judge before Obama nominated her to the Supreme Court in 2010. At the same time, she had amassed a wealth of experience elsewhere—most notably as the U.S. solicitor general, which represents the federal government before the Supreme Court, and as dean of Harvard Law School. By the time Obama nominated her, she was highly respected throughout the legal community: After Scalia’s death in 2016, top Obama adviser David Axelrod said the justice had privately lobbied him in 2009 to help send Kagan to the Supreme Court whenever he got the opportunity.

Walker’s only record of government service before becoming a federal trial judge is a yearlong stint as a speechwriter for then–Secretary of Defense Donald Rumsfeld in 2004 and 2005. Most of his legal career was spent in private practice, followed by two years as a law professor at the University of Louisville from 2015 to 2017. Trump’s other two D.C. Circuit nominees, Greg Katsas and Neomi Rao, had substantially more experience before their nomination. Katsas held a variety of positions in the Justice Department and worked in the White House Counsel’s Office; Rao was a prominent administrative law scholar at George Mason University and held a top regulatory job in the Office of Management and Budget.

So what characteristics actually merit Walker’s elevation to the second most powerful court in the country? First, he appears to have the right personal connections. Walker worked as a clerk for Kavanaugh during the justice’s tenure on the D.C. Circuit, then clerked for Anthony Kennedy at the Supreme Court. The current and former justices both reportedly lobbied Trump to appoint him to the D.C. Circuit seat. The Washington Post reported that Senate Majority Leader Mitch McConnell, a fellow Kentuckian who shepherded Walker’s ascent through the federal judiciary, knows his grandfather. “I think you cannot credibly argue that Justin Walker is not a judicial all-star,” McConnell told the Post.

Second, he appears to have the right ideological perspective for Trump and McConnell. Walker’s few legal writings before joining the bench are deeply skeptical toward constraints on the president’s control over the executive branch. In a 2018 article for The George Washington Law Review, he argued against the FBI’s “misguided and dangerous” tradition of political independence from the White House and compared the president’s need to maintain civilian control of the military. The 68-page article devotes most of its time to cataloging J. Edgar Hoover’s abuses of power. The Watergate crisis is mentioned by name only once; its impact on the FBI’s culture and subsequent reforms are largely ignored.

More recently, he drafted an article where he predicted that Kavanaugh, his former boss, would soon lead a revolution against federal agencies. Under the Chevron doctrine, lower courts typically give those agencies a wide degree of deference to enforce laws written by Congress. The Supreme Court’s 1935 ruling in Humphrey’s Executor v. United States also recognized limits on the president’s power to fire certain regulatory officials at will. Walker claimed that Kavanaugh would lead his conservative brethren to radically diminish the federal government’s regulatory powers. “If the democratically accountable representatives of the citizenry and their states have not chosen a policy, the policy ought not to become law,” Walker wrote.

Third, and perhaps most importantly, he is a team player for the conservative legal movement. Walker gave more than one hundred interviews during Kavanaugh’s confirmation process in 2018, where he touted his former boss’s record and defended him from early critics on the right. Writing in The Federalist that July, Walker assured readers that Kavanaugh “has by far the strongest, most consistent, most fearless record of constitutional conservatism of any federal court of appeals judge in the country.” That loyalty did not waver after Christine Blasey Ford publicly said that Kavanaugh had sexually assaulted her in high school. In a Fox News interview, he derided Senate Democrats’ efforts to investigate her account as a “farce.”

His own nomination is likely to be a major clash in the Senate, and the conservative legal movement’s network of well-funded organizations are gearing up for the fight. The prospective D.C. Circuit judge is “living proof that in America, where you come from doesn’t limit what you can achieve,” Mike Davis of the Article III Project claimed in an effusive Townhall column published one day before the White House’s announcement. “With the nomination of Judge Justin Walker to the D.C. Circuit, President Trump has kept his promise to drain the D.C. swamp and appoint judges in the mold of the late-great Justice Scalia.”

Indeed, Walker is the grim culmination of legal conservatives’ approach to judicial nominations. It would be naïve at this point to expect Trump and McConnell to advance would-be judges who don’t fit their ideological vision for the courts. So consider instead the trend line that goes from Reagan-era D.C. Circuit picks like Scalia and Robert Bork, who were both leading originalist scholars and experienced civil servants, to a 37-year-old relative neophyte who has all the right social connections and says or writes little beyond what the people who choose judges want to hear. If Walker is truly the best nominee that the conservative legal movement can offer, then it’s a more damning critique of their ranks than any liberal could muster.