Democrats spar with controversial Trump court pick over ObamaCare, Kavanaugh

Senate Democrats sparred with a controversial circuit court nominee on Wednesday over his positions on the Affordable Care Act and his relationship with Supreme Court Justice Brett Kavanaugh. 

Democrats repeatedly raised Justin Walker’s remarks at a swearing in ceremony in March, where he critically referenced Chief Justice John Roberts’s opinion upholding the health care law, and a 2018 article where he called the Supreme Court’s ruling upholding a key part of the law “indefensible.” 

“You haven’t hidden your contempt for the Supreme Court decision upholding the Affordable Care Act,” Sen. Patrick Leahy (D-Vt.), a former chairman and current member of the Senate Judiciary panel, told Walker.

The nominee, an ally of Senate Majority Leader Mitch McConnell (R-Ky.)was confirmed in October to serve as judge for the western district of Kentucky. He’s now been nominated to serve on the D.C. Circuit Court. 

Walker’s nomination is expected to be the biggest judicial fight the Senate will have this year, absent a Supreme Court vacancy. The D.C. Circuit Court is widely viewed as the second most powerful court in the country given its jurisdiction over Congress and government agencies.

Sen. Dick Durbin (D-Ill.) said Walker “mocked” the court’s ruling during an event in Kentucky earlier this year. 

“Here you come before us … having mocked the law that basically provides an attempt to provide health insurance to more Americans? Do you understand the angst, do you understand the concern that we have?” he said.

The controversial remarks made by Walker came during a Kentucky event attended by both Kavanaugh and McConnell.

“The greatest words you can hear from Justice Kennedy are: ‘You’re hired.’ … And the worst words are: ‘The chief justice thinks this might be a tax,’ ” he said, referencing the Roberts opinion that upheld the mandate that people buy insurance by describing it as a tax. 

Walker at Wednesday’s hearing described the remarks as a joke, calling it a “lighthearted allusion” to former Justice Anthony Kennedy’s dissent to the majority opinion. 

“It was nothing more than really a tongue in cheek way of recognizing what’s certainly in the public record already,” he said. 

Democrats say that Walker’s criticism of the Affordable Care Act deserves heightened scrutiny amid the coronavirus pandemic, where tens of millions are losing their jobs and in many cases their health insurance. 

Durbin asked Walker to commit to recuse himself from any ObamaCare-related cases. But Walker sidestepped, saying he would refer to laws governing judicial recusal and “I pledge to you today to follow that statue to the letter.” 

Walker was confirmed along party lines for his district judge post in October, with the  American Bar Association (ABA) rating him as “not qualified” because of his lack of a trial record. 

This week, the ABA rated him as “well qualified” for the circuit court seat because of his appellate experience as a lawyer and his legal writing during his short time on the bench.

Walker, a protégé of Kavanaugh’s and a favorite of McConnell’s, was tapped to replace D.C. Circuit Judge Thomas B. Griffith, who was appointed by former President George W. Bush. Griffith announced his retirement in March, shortly after writing an opinion finding that Congress did not have legal standing to have its subpoenas of the executive branch enforced by the judiciary.

McConnell praised Walker, who was once an intern in his office, urging the Judiciary Committee to approve the nomination. 

“I look forward to confirming him soon here on the Senate floor,” McConnell said.

Democrats have raised concerns about the political circumstances surrounding his nomination, and repeatedly noted Walker’s relationship with Kavanaugh and McConnell. 

“The statements you made follow the Republican agenda and what Donald Trump wants to see in his nominees,” Leahy said. 

Senate Minority Leader Charles Schumer (D-N.Y.) said the Judiciary Committee was going to “waste precious time on the nomination of Leader McConnell’s protege.” 

“Walker is a 37-year-old Federalist Society disciple who has more experience as a cable news commentator than he does trying cases in court,” he said.  

In response to repeated questions about his political ties and his past legal writings, Walker maintained that he does not approach his duties with any bias.

“A judge is not a good judge if he or she always likes the policy result that comes from the position,” he said.

Walker was unabashed on Wednesday in his praise of Kavanaugh, who was confirmed to the Supreme Court after facing sexual assault allegations, which he has denied. 

“I think Justice Kavanaugh as well as Justice Kennedy are outstanding judges. I think that good judging means being faithful to the original meaning of text,” Walker said. 

Republicans on the Judiciary Committee defended Walker on Wednesday. 

“You’ve been accused of everything except hating golden retrievers,” said Sen. John Kennedy (R-La.).

Walker’s most notable piece of jurisprudence in his short time as a judge has been his decision to issue a temporary restraining order against the city of Louisville from prohibiting drive-in church service in its effort to hamper the spread of coronavirus infections. 

In a 20-page opinion, the judge claimed the Louisville mayor had “criminalized the communal celebration of Easter” and blasted the order against church services as an assault on religious liberty.

Walker stood by the decision Wednesday, saying he believed the mayor’s decision violated the First Amendment’s religious protections.

“It was a long opinion and it was a long opinion because I believed it was a momentous and even severe thing for a court to enjoin a mayor in the midst of this terrible pandemic when the mayor is asserting that his actions could save lives,” he said. “And I only made the decision I did because that is what the law required.”

Democrats knocked Republicans for holding the nominations hearing during the coronavirus pandemic, arguing the committee should be focused on the disease and the economy.

“We’re sitting in a committee with jurisdiction with so many critical areas … and instead Senator McConnell is unwilling to set aside his wish list of filling the courts,” Durbin said. 

Sen. John Cornyn (R-Texas) fired back that the Senate can “walk and talk and chew gum at the same time.”