Trump Taps Kentucky Judge to Fill Vacancy on DC Circuit

WASHINGTON (CN) — President Donald Trump on Friday announced plans to nominate a Kentucky federal judge and former law professor who clerked for now-Supreme Court Justice Brett Kavanaugh to a seat on the D.C. Circuit.

The Senate confirmed Judge Justin Walker to a seat on the U.S. District Court for the Western District of Kentucky in October, despite the American Bar Association's Standing Committee on the Federal Judiciary rating him not qualified for the position because of a lack of experience.

While the committee determined Walker "has great potential to serve as a federal judge," it faulted him for having very little "significant trial experience" and falling short of the 12 years of law practice recommended for judicial nominees. Born in 1982 and out of law school for just more than a decade, Walker would be considerably younger than the typical federal appeals courts judge.

Nominees to federal appeals courts have a somewhat different range of backgrounds than picks for seats on federal district courts, in part because appeals courts do not hold trials. Several of Trump's choices for appeals courts, including D.C. Circuit Judge Neomi Rao, have come from academia. 

A graduate of Harvard Law School, Walker began running his own practice out of his home starting in 2013 and took a position as a professor at the University of Louisville Brandeis School of Law in 2015. He also did two stints at the Washington, D.C., firm Gibson Dunn & Crutcher from 2009-2010 and again from 2012-2013, in between which he clerked for then-Justice Anthony Kennedy on the Supreme Court.

Walker also clerked for Kavanaugh, who at the time was a judge on the D.C. Circuit. Walker was a fixture on television and radio supporting Kavanaugh during his contentious Supreme Court nomination, which became a bitter fight after multiple women accused Kavanaugh of sexual misconduct dating back to his time in high school and college.

Walker comes with the strong support of Senate Majority Leader Mitch McConnell, who during Walker's nomination to the federal district court called him "unquestionably the most outstanding" nominee he has ever recommended.

On Friday, McConnell praised Trump's choice to elevate Walker to one of the most powerful courts in the country.

"Judge Walker is a brilliant and fair jurist who reveres the Constitution and our nation's founding principles," the Kentucky Republican said in a statement. "He understands the crucial but limited role that a judge must play in our constitutional order. I have known my fellow Kentuckian for a long time. The entire country will benefit from having this brilliant, principled, and fair-minded legal expert on this consequential bench."

Demand Justice, a progressive group that opposes Trump's judicial nominees, raised concerns about the process that led to Walker's nomination, citing a New York Times report that McConnell has reached out to federal judges encouraging them to retire this year so Trump can pick their replacement.

"The nomination of a Mitch McConnell crony, who has been rated unqualified by his peers, to the second highest court in the country is beyond suspicious," Demand Justice Chief Counsel Christopher Kang said in a statement. "We need an immediate investigation into whether McConnell manufactured this vacancy by unethically pressuring Judge Thomas Griffith to retire now."

Due to its jurisdiction, many of the D.C. Circuit's decisions involve challenges to the actions of federal agencies and a common theme among Trump judicial nominees has been a skeptical view of administrative agency power.

A general trend in the conservative legal movement, skeptics of the court's precedents related to administrative agencies say it has given more power to bureaucrats who do not face election, treading on fundamental constitutional principles of the separation of powers.

Critics of this line of thinking say paring back the court's rulings in those areas would jeopardize the federal government's ability to regulate on key issues like the environment.

"There are critical civil rights, education, health, environmental protections that our federal agencies — they have the power to make sure that the air is clean, that the water is clean, that our civil rights are enforced, that students have protections against sexual assault, for example," Lena Zwarensteyn, the Fair Courts campaign director at the Leadership Conference on Civil and Human Rights, said in an interview. "And when you have somebody like Walker, who really would rather judges' opinions on what should be the law, as opposed to these federal agencies who have much more expertise, it's incredibly dangerous."

In 2019, Walker wrote an article predicting Kavanaugh would lead a judicial movement on the Supreme Court that would roll back and reshape key court precedents related to the separation of powers and administrative law.

He particularly mentioned the core administrative law tenet known as Chevron deference, under which courts generally defer to agency interpretations of ambiguous laws they administer, and the decision in Humphrey's Executor v. United States, which allowed the creation of independent agencies insulated from influence from the president.

"The result will be a federal government capable of making the same policy as it does today, but one in which the policy must be made by elected officials," Walker wrote. "The result will be a federal government that is still vast and powerful, but no longer unaccountable to the people."

William Yeatman, a research fellow at the Cato Institute, said the views Walker outlined in the paper square with more general trends in the conservative legal movement. He added that the rising importance of judicial nominees' views of legal issues surrounding administrative agencies coincides with the increasing degree to which federal agencies play a role in policymaking out of Washington.

"He's writing as though he's of mind with Justice Kavanaugh," Yeatman said in an interview, referring to Walker's article.

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