The ABA’s finding that Judge Justin Walker is “well qualified” to serve on the D.C. Circuit removes the Democrats’ main, though always specious, talking point against confirming Walker. As a result, the Dems are reduced to basing their case against Walker on the Wuhan coronavirus.
During today’s hearing on Walker’s nomination, Sen. Durbin found it ironic that, in this time of a pandemic, a “strident” opponent of Obamacare is up for an appellate court judgeship. Durbin is hardly a great legal mind, but even he must understand that the coronavirus renders Obamacare no more (and no less) constitutional than it was during normal times.
Democrats pointed to a comment Walker made at a ceremony marking his becoming a U.S. district court judge. With Anthony Kennedy present, Walker said that the “worst words” he ever had to deliver to Kennedy, as his law clerk, were that Chief Justice Roberts was siding with the Court’s liberal bloc in the 2012 Obamacare case, meaning that the key portion of Obamacare would be upheld as constitutional. Because of Roberts’s change of heart, Justice Kennedy, to his chagrin, would be writing the dissent, not the majority opinion.
Walker characterized his comment as a joke predicated on Kennedy’s unhappiness with Roberts’s flip. It seems like that’s what it was.
In any event, neither Walker’s view of Roberts’s position nor Kennedy’s view of it is grounds for not confirming Walker. The nominee is on record that the Chief Justice’s position is legally “indefensible.” However, as an appeals court judge, Walker will be bound by the 2012 Supreme Court ruling on Obamacare. Being bound by the decision does not preclude expressing disagreement with it, whether jokingly or with utmost seriousness.
Another potential Democratic talking point is Walker’s strong advocacy for the confirmation of Brett Kavanaugh to the Supreme Court. Given Joe Biden’s predicament, Democrats may find that card less playable than before.
Walker, for his part, embraced his close connection with Kavanaugh. He told the Senators that “as an academic and as a former clerk, I thought I knew about Justice Kavanaugh and his jurisprudence, and I wanted to share that knowledge with people who didn’t.”
Why shouldn’t he have?
Walker is no more closely connected to Kavanaugh than he was when the Senate confirmed him to the federal bench as a district court judge. The connection didn’t prevent his confirmation on a straight party line vote.
Walker will be confirmed this time, too, probably again on a straight party line vote.