The Senate Judiciary Committee held its first hearing on Wednesday since March, and the coronavirus pandemic made it a surreal affair. Senators in the chamber spaced themselves far apart from one another; others contributed by videoconference. Most of the lawmakers and their staffers wore masks when they weren’t speaking. So did the only witness who appeared before the committee, as well as the only spectator, who sat in an otherwise empty gallery.
What brought the committee back together wasn’t the pandemic itself, or even aspects of it that might fall in its jurisdiction: the troubling spread of the virus within federal prisons, for example, or the fierce debate on whether to immunize businesses from pandemic-related lawsuits. Instead, they gathered to consider whether Judge Justin Walker should be elevated to the U.S. Court of Appeals for the District of Columbia Circuit, which is generally considered to be the second-most-powerful court in the United States.
The answer should be a resounding no. Walker, who is 37 years old, has served as a federal District Court judge in Kentucky for only about six months. As I noted last month, he is far less experienced than other federal circuit court nominees, including President Donald Trump’s previous D.C. Circuit nominees, by almost any conceivable metric. His scant judicial work also falls well short of justifying his appointment. One senator noted that he has not presided over any bench or jury trials so far and that he has only written about a dozen opinions during his brief tenure.
The Senate’s Republican majority will likely confirm Walker, however, for the same reason that Walker was nominated in the first place. It’s impossible to credibly argue that he is the most qualified or most experienced candidate for the vacancy. There is no shortage of lawyers, judges, or scholars in the conservative legal movement who could fit the bill. What sets Walker apart, however, is that he’s simply the best-connected member of that movement—and it’s warping the Senate’s judgment across the board.
Last month, I argued that Walker “says or writes little beyond what the people who choose judges want to hear.” I could not have asked for better proof than the opinion he released a few days later in On Fire Christian Center v. Fischer. Greg Fischer, the mayor of Louisville, Kentucky, had urged residents to abide by the statewide stay-at-home order and not take part in the drive-through Easter services staged by some churches. He told news outlets that city police would be writing down the license plate numbers of cars that ignored his request. One such church, the On Fire Christian Center, filed a lawsuit against the city on the Friday evening before Easter Sunday to block local officials from enforcing the order on religious freedom grounds.
On Saturday, Walker granted the church’s request for a temporary restraining order that barred the city from “enforcing; attempting to enforce; threatening to enforce; or otherwise requiring compliance with any prohibition on drive-in church services at On Fire.” A temporary restraining order, or TRO, isn’t unusual in litigation against government agencies, especially if its absence would lead to the injury that the plaintiffs were asking a court to prevent in the first place. The Trump administration’s lengthy battles in federal courts over its travel ban in 2017 gave Americans perhaps the best-known examples of TROs in recent years.
What was unusual, however, was the 20-page opinion that Walker wrote to accompany his order. His legal conclusions were unremarkable. Walker found that On Fire had a “strong likelihood” of success on First Amendment grounds once the court could hear the case in full, that the church would suffer an “irreparable injury” without the court’s intervention, and that factors like the public interest weighed in its favor. The young judge spent most of what should have been a straightforward ruling denouncing the mayor for his actions in histrionic terms.
“On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” Walker wrote as an introduction. “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. 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.”
From there, Walker spends 10 pages—roughly half the opinion—recounting the history of religious persecution. He invoked Roman efforts to stamp out early Christianity, the Pilgrims on the Mayflower, the Thirty Years’ War, and the nineteenth-century persecutions of Mormons and Catholics. He referenced American slave-owners who beat pious slaves, Harvard’s quota of Jewish students, and the Ku Klux Klan membership of Justice Hugo Black and West Virginia Senator Robert Byrd. He cited Alexis de Tocqueville’s Democracy in America and George Orwell’s 1984. One could be forgiven for thinking, based on Walker’s tone, that Louisville’s mayor was going to feed churchgoers to lions.
By the time he wrapped up, Walker’s opinion drifted into self-absorption. “Some who read this Court’s opinion will disagree with the Mayor,” he concluded. “Others will disagree with the Court. And each camp will include some readers who share On Fire’s faith, others whose conscience calls them to a different faith, and still others who profess no faith at all. Each of them, believers and non-believers, deserves at least this from the Court: To know why I decided as I did. You may not agree with my reasons, but my role as a judge is to explain, to teach, and perhaps, at least on occasion, to persuade.”
Josh Blackman, a South Texas College of Law professor, wrote at Reason last month that the opinion reads less like a judicial opinion and more “like something of a law review article.” That is a charitable assessment. Walker’s opinion reads more like an op-ed written by someone who has just read the “Religious discrimination in the United States” article on Wikipedia and has to meet their deadline in one hour. Legal writing can be a joyless exercise, and nobody can begrudge a federal judge for taking some flourishes to liven it up. Walker’s florid and unnecessary prose went far beyond that. It reads like the author thought he was writing a great, historic ruling on a great, historic matter.
The opinion’s overwrought writing should raise questions about whether Walker has the sobriety for an even higher judicial office. But instead, it met a receptive audience on the Senate Judiciary Committee, where multiple Republican senators praised him at length for it. “It is black letter law that a government may not single out religious activity for adverse treatment by [the] government,” Utah Senator Mike Lee wrote on Twitter in a post that included his questions for Walker about the ruling. “That’s what Louisville did, and Judge Walker was right to overturn the city’s ban. He’ll make a great judge on the DC Circuit.”
Some observers have noted instances in recent years where conservative judges flaunt their views in judicial writings in an apparent bid to garner support for elevation to higher courts. If that was Walker’s goal here, it appears to have worked. But Walker has been advertising that he would be a loyal conservative foot soldier in the courts for quite some time. He told the Senate that he was approached to be a potential judicial nominee shortly after a lengthy media tour in 2018 defending Brett Kavanaugh, for whom he once clerked, during his bruising confirmation fight. McConnell, a fellow Kentuckian and a family friend, helped ensure his nomination to the District Court and now to the D.C. Circuit.
Senate Republicans appeared conscious of how Walker’s networking efforts had paid off. “I guess you stand accused of knowing a United States senator or two,” Texas Senator John Cornyn told Walker during Wednesday’s hearing. “I don’t know how you become a federal judge without knowing a United States senator since it is the Senate’s responsibility to provide that advice and consent.” This is a tortured interpretation of Cornyn’s constitutional role, to say the least. Senators are supposed to act as a check against inappropriate appointments by the executive branch, not as a conduit for doling out lifetime judicial appointments to the well-connected.
Like Kavanaugh, who angrily denounced the Clintons and the left in a partisan tirade during his confirmation battle two years ago, Walker also appears to view his primary role on the bench as ideological warfare. In remarks at his investiture ceremony in March, the new judge thanked his family as well as Kavanaugh and McConnell, who were both in attendance. Then he took aim at “my nomination’s opponents, including the American Bar Association,” whose committee on federal judicial nominees had rated him as “Not Qualified.”
“Thank you for serving as an enduring reminder that although my legal principles are prevalent, they have not yet prevailed,” Walker told the crowd, “that although we are winning, we have not yet won; and that although we celebrate today, we cannot take for granted tomorrow or we will lose our courts and our country to critics who call us terrifying and who describe us as deplorable. Well, my friends, there is nothing terrifying about the original meaning of our Constitution, and there is nothing deplorable about defending it.”
It’s unreasonable to expect that the right’s judicial-industrial complex will produce nominees whose reading of the Constitution resembles my own. But it’s not unreasonable to expect that the president nominates and senators confirm judicial nominees who meet a minimum threshold of qualifications and temperament. Democratic senators spent Wednesday’s hearing questioning Walker about the Affordable Care Act, toward which he seems hostile, and other procedural issues surrounding the nomination. But they failed to convey that Republicans are poised to hand a lifetime seat on the second-most-powerful court in America to someone whose only contribution would be partisan hackery.