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.
Walker previously served as a law clerk for Supreme Court Justice Brett M. Kavanaugh, when he served as a judge on the D.C. Circuit, and then for Justice Anthony M. 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 protege.
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.”
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. Richard J. 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.
Wednesday’s hearing, expected to be contentious, will also have the lingering sense of the deadly virus. Rather than the usual cramped committee hearing room, on the second floor of the Dirksen Senate Office Building, the panel is convening in a giant room on the ground floor so that senators and the witness can observe social distancing guidelines.
Some senators may opt to attend the hearing by video teleconferencing, as many did during other hearings on Tuesday.
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.
“An American mayor criminalized the communal celebration of Easter,” Walker wrote in a temporary restraining order. “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. … The Mayor’s decision is stunning. And it is, ‘beyond all reason,’ unconstitutional.”
Walker’s order prevented 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 [Christian Church],” according to court documents.
Walker has long been eyed for a vacancy on the powerful appeals court. As he worked on Kavanaugh’s nomination, Walker also quietly interviewed for that opening in September 2018, according to documents filed with the Senate Judiciary Committee.
That vacancy ultimately went to Neomi Rao, then the Trump administration’s chief regulatory official. Walker was subsequently nominated for and confirmed to the federal judgeship in the Western District of Kentucky.
The vote last October was 50 to 41.
His 2018 job interview for Kavanaugh’s old job with the Office of White House Counsel, then led by Donald McGahn, was first disclosed in his nomination papers submitted to the Senate last week for the D.C. Circuit vacancy. That interaction was not mentioned in his paperwork for the lower court position in Kentucky. Walker’s allies say he did not have to disclose the circuit court interview because he had been nominated for a different judicial vacancy.
Still, Sen. Dianne Feinstein (Calif.), the committee’s ranking Democrat, asked Walker in follow-up written questions to describe his experience “during the entire judicial selection process, including communications you received between June 22, 2018 and March 7, 2019,” regarding Walker’s nomination to be a federal judge and Walker did not include the September 2018 interview, according to committee documents.
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 B. 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.
“My decision was driven entirely by personal concerns and involved no discussions with the White House or the Senate. Eleven years ago, my wife was diagnosed with a debilitating chronic illness. The recent years have been difficult, and it became clear that I would not be able to carry on my duties as a judge while still fulfilling my paramount responsibility to care for her,” he said.
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.
Ann Marimow contributed to this report.
