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Even a Pandemic Can't Shut Down Trump Judicial Nominations

When the GOP-controlled Senate returns next week during the COVID-19 pandemic, it'll get back to what it does best: Confirming President Donald Trump's judicial nominees.

The Senate Judiciary Committee is expected to take up the nomination of U.S. District Judge Justin Walker, who Trump has selected for a seat on the U.S. Court of Appeals for the D.C. Circuit. Walker is a protégé of Majority Leader Mitch McConnell, who attended Walker's investiture ceremony last month toward the start of the pandemic hitting the U.S.

Walker's nomination was already expected to come under fire from Senate Democrats, after he was questioned last year over the American Bar Association giving him a "not qualified" rating for a seat on the Western District of Kentucky over his lack of trial experience. Walker maintained that his time teaching trial procedures was enough to fill in the gaps.

He's also been criticized for his defense of Justice Brett Kavanaugh during his contentious confirmation process to the U.S. Supreme Court in 2018, over sexual misconduct allegations. Walker regularly appeared on Fox News and other conservative media in defense of Kavanaugh, who he clerked for while the now-justice sat on the D.C. Circuit.

But the ongoing health crisis is amplifying more criticism by Democrats over Walker's record. The judge already made pandemic-related headlines after he granted a temporary restraining order to a church seeking to hold drive-in services on Easter Sunday, authoring a fiery opinion without holding a hearing to determine whether such a court order was necessary.

Both liberals and conservatives criticized Walker over the opinion. Matthew Martens, a WilmerHale partner who represented the church, declined to weigh in on Walker's opinion but said the legal team thought the judge "got it right."

During a briefing call held Wednesday, liberal judicial and healthcare groups criticized both Walker and Trump's nominee for the U.S. Court of Appeals for the Fifth Circuit, Cory Wilson, citing their remarks opposing the Affordable Care Act, or opposing rulings upholding it.

"Any senator who supports Trump's judges who are so committed to dismantling the very protections we need now more than ever, cannot then purport to care about the health of their constituents," said Nan Aron, president of Alliance for Justice.

"There's so many issues our elected officials need to tackle at this particular moment, confirming judges committed to taking access to quality health care for millions will only further harm our country," she added.

Conservatives have come to Walker's defense. They describe him as a rising star and bright legal mind, noting McConnell's interest in the nominee from the time Walker was in high school.

The witness list for next week's nomination hearing has not been confirmed, nor have the procedures for exactly how the hearing will be conducted, although the Senate Rules Committee is sure to weigh in on what those proceedings will look like.

McConnell said during a recent Fox News interview they will "man the Senate in a way that's consistent with good practices, the proper spacing, masks where appropriate."

Senate Democrats, including those on the Judiciary committee, have opposed that decision. Ranking member Sen. Dianne Feinstein, 86, on Wednesday asked McConnell to reconsider: "Clearly the coronavirus is present at the Capitol. Bringing 100 senators from around the country, including many coronavirus hotspots, along with many more staff, credentialed press, and others, to this environment risks all of us."

Regardless of Democrats' attacks, it looks like Walker is destined for the D.C. Circuit seat. He was confirmed for the Kentucky judgeship 50-41, and Republican defections for his nomination are unlikely.

And Walker won't be the only judge who gets consideration during the pandemic: Other judges are expected to be considered during next week's nomination hearing, and Trump announced two more judicial nominees for district court seats on Wednesday.

"My motto for the year is, leave no vacancy behind. That hasn't changed," McConnell said in an interview with conservative radio host Hugh Hewitt last week. "The pandemic will not prevent us from achieving that goal."

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Which Trump Judges Did Your Senator Confirm?

Speaking of judicial nominees: The Alliance for Justice Campaign, the political arm of Alliance for Justice, is unveiling a new tool today that lets voters look at how senators running for reelection in 2020 voted on some of Trump's judges.

The left-leaning judicial group picked judges who they label Trump's "most egregious" nominees since he took office, and looked at whether the senators voted for them. There are 15 judges for each topic, with records in support of eroding environmental protections or decreasing health care access, per the group's descriptions. Some of the judges include Justice Neil Gorsuch, Judge Amy Coney Barrett on the U.S. Court of Appeals for the Seventh Circuit and Judge Kyle Duncan on the U.S. Court of Appeals for the Fifth Circuit.

For example, former presidential candidate and Judiciary Committee member Sen. Cory Booker voted against all of the judges AFJ picked, as did fellow Judiciary Democrats Dick Durbin and Chris Coons.

But Sen. Susan Collins, who liberal groups have already been targeting over her support for Justice Brett Kavanaugh's nomination, voted for 12 judges the group claims have poor records on reproductive rights and 14 on the environment. She's facing a tough challenge up in Maine, as Democrats seek to oust her from the seat.

Liberal groups have generally failed to make the judiciary as big of an issue for voters as conservatives have. They held the first-ever presidential forum on the courts ahead of the New Hampshire primaries, which put more light on the topic, but presumed Democratic nominee Joe Biden didn't participate.

What We're Reading

>> While 'Praying for a Pardon,' Roger Stone Appeals His Conviction to the DC Circuit: "[Stone] also has recently hired Paul Kamenar, an appellate attorney who represented Stone associate Andrew Miller in the legal fight against a subpoena for Miller's grand jury testimony in the federal investigation into Stone. Kamenar argued special counsel Robert Mueller III's appointment was unconstitutional because he should have been Senate confirmed, an argument rejected by Chief U.S. District Judge Beryl Howell, who found Miller to be in contempt." [National Law Journal]

>> Mazars, Impeachment & Mueller: Judges Review House's Year of Trump Legal Fights: "The appeals court in D.C. has already ruled on three of the House lawsuits. And as they heard the arguments in a pair of cases that were previously unrelated Tuesday, the judges tied the legal questions back to the lawsuits they've ruled on, to Trump's impeachment and to the House cases now pending before the U.S. Supreme Court—a sign of just how frequent and intertwined the congressional litigation has become over the past 12 months." [National Law Journal]

>> Flynn Lawyers Seize on Newly Released F.B.I. Documents: "It will be up to a federal judge to decide if the notes and emails advance claims that Mr. Flynn was framed when he lied to the F.B.I. in January 2017 about his conversations with a Russian diplomat, a felony he twice pleaded guilty to. The documents show details of a debate among F.B.I. officials before they interviewed Mr. Flynn at the White House and about how to address legal, investigative and political issues, as well as other inner workings of a high-level law enforcement inquiry." [New York Times]

>> The Trump Administration's Legal Moves to Prevent a Meat Shortage, Explained: "If meat processing plants adhere to the standards, they could reduce both the risk of future widespread outbreaks at the plants and the risk of legal liability to employers if workers nevertheless get sick….Moreover, if sick workers or their estates file lawsuits claiming that they were exposed to the virus at work because of their employer's negligence, following these standards will provide a defense in court: The Trump administration has offered to have a Labor Department official testify as a witness at trial that the federal government thinks the company was not at fault." [New York Times]

>> 'What Is at Stake': Leaning Toward House, En Banc DC Circuit Feels Weight of Ruling on Lawmakers' Lawsuits: "The judges made clear they felt the gravity of their upcoming opinions. Any decision is certain to have far-reaching consequences for the House's tranche of legal challenges already sitting within the circuit, as well as federal judges' ability to preside over disputes between the two other branches. 'These cases, both of them, are sort of big deals,' said Judge Patricia Millett. 'It seems like a decision either way may not be fairly described as neutral in these cases.'" [National Law Journal]

>> Justices Ask if They're Barred From Ruling on Trump Tax Cases in New Hurdle for US House: "The U.S. Supreme Court asked the U.S. House of Representatives, President Donald Trump's private attorneys and the solicitor general to brief the justices on the "political question" doctrine in relation to cases on subpoenas for the president's tax documents, suggesting the justices could find they can't rule on the cases." [National Law Journal]

Thanks for reading Trump Watch! I'll be back next week. Stay safe.