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Glenn Kirschner Mitch McConnell, Judge Justin Walker and the death of judicial qualifications

Judges appointed today will literally be making consequential legal decisions for decades to come. Hopefully lawmakers can, at the very least, agree that experience still matters.
Image: Senate Holds Nomination Hearing For DC Circuit Judge
Judge Justin Walker is sworn in prior to testifying before a Senate Judiciary Committee hearing on his nomination to be a U.S. circuit judge for the District of Columbia Circuit on Capitol Hill on May 6, 2020.Jonathan Ernst / Getty Images

Thus far, President Donald Trump has appointed more than 190 judges to the federal bench. These judges enjoy life tenure and their work as jurists will shape the contours of America’s legal landscape for generations to come. The ideological leanings of these judges are certainly a concern for progressive advocates. But even putting politics aside, there’s plenty of reason to worry.

The ideological leanings of these judges are certainly a concern for progressive advocates. But even putting politics aside, there’s plenty of reason to worry.

Several Trump nominees were rated “not qualified” to serve as judges by the American Bar Association but nevertheless were pushed through the confirmation process by Senate Majority Leader Mitch McConnell. Having unqualified judges signals a troubling degradation of the quality and, potentially, the fairness and independence of the federal judiciary. This concern is especially acute with McConnell’s recent nomination of a young protégé named Justin Walker for a position on the prestigious U.S. Court of Appeals for the District of Columbia Circuit.

Let me say upfront that Republican presidents are both entitled and expected to nominate judges who reflect that president’s views, priorities and ideology. The same is true, of course, of Democratic presidents. But regardless of who’s doing the nominating, experience and qualifications matter.

The D.C. Circuit Court of Appeals, established in 1893, is a storied court before which I had the privilege of arguing cases during my time as an assistant U.S. attorney for the District of Columbia. Among its past judges are Chief Justice John Roberts, Chief Justice Warren Burger, Justice Ruth Bader Ginsburg and Justice Antonin Scalia.

Historically, before a person was considered for such a prestigious and weighty appointment, they had to have accumulated a lifetime of service and a demonstrated ability to handle some of our country’s most difficult, thorny and often politically charged matters.

Roberts, for example, was appointed to the D.C Circuit Court by President George W. Bush in 2003, after serving as an aide to Attorney General William French Smith, associate counsel to President Ronald Reagan and principal deputy solicitor general of the United States. Judge James Buckley was appointed to the court by President Ronald Reagan in 1985, after serving as a U.S. senator from New York, undersecretary of state for international security affairs and counselor for the State Department. Scalia was appointed by Reagan in 1982 after serving several years in private practice, working as a law professor at the University of Virginia, serving in the Nixon and Ford administrations and then becoming assistant attorney general for the Office of Legal Counsel.

These men all have at least two things in common — they were conservatives appointed by a Republican president after they had long, distinguished careers.

Historically, before a person was considered for such a prestigious and weighty appointment, they had to have accumulated a lifetime of service.

Turning to 38-year-old Justin Walker, the person McConnell — and, I suppose, Trump — thinks is exactly the right person to be joining the D.C. Circuit Court of Appeals. Walker graduated law school in 2009. He clerked for Supreme Court Justice Anthony Kennedy and for Supreme Court Justice Brett Kavanaugh, when the latter was a D.C. Court of Appeals judge. Walker then taught legal writing for a few years at a law school in Kentucky. In 2019, McConnell recommended him for a position as a federal judge. At that time, Walker had never practiced law at a private firm, had never tried a case as either a prosecutor or a defense attorney and had never served as a judge in any state or local court. The American Bar Association rated Walker “not qualified” to serve as a federal district court judge.

And yet, Walker was confirmed as a judge for the Western District of Kentucky in October 2019 on a party-line vote. At his investiture ceremony, Walker made a number of comments that are concerning. He “thanked” the ABA and others who opposed his nomination. He also told the audience that his “legal principles... have not yet prevailed,” noting, “although we are winning, we have not yet won.” Walker also added, with alarmingly brazen partisanship, 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.”

After serving as a district court judge for just a few months, McConnell is now pushing Walker as an appellate court judge. (It’s worth noting that, all things being equal, the natural progression for a stellar Kentucky federal district court judge would be the Sixth Circuit Court of Appeals — the court that hears appeals from Kentucky federal district courts.)

In a surprising turnabout, this week the ABA released a letter saying it had looked at Walker’s current nomination through a “different lens.” A majority of the evaluation committee members now rate Walker “well qualified” with a minority of the committee members rating him either “qualified” or “not qualified.” It's hard to understand the inconsistent evaluations, particularly in light of Walker's comments mocking his critics and resorting to the now well-worn "deplorables" reference. As a judge, decorum, civility and temperament matter.

To be fair, the White House seems inclined to disregard the ABA's recommendations generally. In 2017, then-White House counsel Don McGahn notified the ABA that the Trump administration was revoking the organization’s special access to background information about judicial nominees for evaluation purposes. By way of comparison, the Obama administration actively sought the ABA’s input regarding judicial nominees.

During Barack Obama’s presidency, the ABA rated 14 of 185 potential nominees as “not qualified.” Upon receiving the ABA’s evaluations, Obama decided against nominating any of the 14. A review of ABA records dating back to the 101st Congress in 1989 reveals that but for Justin Walker (the first time), no nominee for the D.C. Court of Appeals has ever been rated “not qualified” by the ABA.

There has always been and likely always will be partisanship in the nomination of federal judges. In some ways, the composition of the federal bench is one of the most enduring legacies of a U.S. president. Judges appointed today will literally be making consequential legal decisions for decades to come.

But even in these times of hyperpartisan politics, qualifications should still matter. McConnell has called the Senate into session this week, in the midst of our national health emergency, to (in part) attempt to push through Walker’s confirmation hearing. The senators should evaluate how Walker's legal career and experience stack up against that of the RBGs, the Scalias and the Roberts of the world. Hopefully lawmakers can, at the very least, agree that qualifications still matter.