Majority Leader Mitch McConnell reconvened the Senate, with an average age of 63, to Washington D.C.—where there are still hundreds of new daily cases of COVID-19—this Monday. The primary reason was not just to pass an emergency stimulus bill or to pad protections for essential workers, but also to continue his agenda of quickly confirming conservative judges to lifelong appointments.
In an interview last week, McConnell confirmed his motivation. “As soon as we get back in session, we’ll start confirming judges again,” he told conservative radio host Hugh Hewitt. “We need to have hearings, and we need to confirm judges.”
McConnell has one particular judge in mind who some have referred to as his political protégé: the 38-year-old Judge Justin Walker of Kentucky. McConnell has known Walker since he was in high school and personally took him to the Oval Office to meet with President Donald Trump.
The seat Walker is set to occupy does not become vacant until September, but McConnell prioritized his hearing during the COVID-19 pandemic. The White House said last month that if Congress did not reconvene President Donald Trump would use a presidential power that has never been used to adjourn the legislative body and fill positions himself.
“The current practice of leaving town while conducting phony pro forma sessions is a dereliction of duty the American people can’t afford during this crisis,” said Trump. “They have been warned.” McConnell had spoken with the president earlier in the day about what he referred to as Senate Democrats’ “unprecedented obstruction” of judgeships.
Despite Walker being rated as non-qualified by the American Bar Association for the lower court job he now occupies because he did “not meet the minimum professional competence standard” and “has a very substantial gap” in experience, the Senate held a three-hour hearing Wednesday to discuss confirming him to the higher D.C. court, often seen as a stepping stone to the Supreme Court.
Democrats do not have the votes to block his confirmation without Republican defection, and Republicans voted unanimously in favor of Walker last year.
Walker began his career as a law clerk to Supreme Court Justice Brett Kavanaugh and was an ardent supporter of him during his controversial 2018 confirmation hearing. Both McConnell and Kavanaugh were in attendance when Walker was sworn in as a district judge in Louisville just six months ago. He is known for his ardent opposition to the Affordable Care Act, which he has referred to as “indefensible” and “catastrophic.”
Democratic members of the Senate pushed back against the decision to hold hearings on judge appointments, stating in a letter addressed to McConnell that “we respectfully urge you to have the Senate focus on COVID-19 related matters and oversight of all COVID-related legislation enacted by Congress,” instead of debating “non-COVID related nominations.” They also requested that McConnell create a plan to ensure the safety of senators, many of whom are in their 80s and highly susceptible to life-threatening complications should they be exposed to the virus.
“There is no way to do this without increased risk,” 86-year-old Sen. Dianne Feinstein said in a statement last Wednesday. “This is the wrong example for the country.”
There is minimal scheduled legislative or committee business related to COVID-19 health or economic emergencies on the docket. One of the few actions was confirming the inspector general for pandemic recovery at the Treasury Department.
Democrats say that the Senate was called to reconvene without proper safety measures in place. The Capitol’s physician, Dr. Brian Monahan, told Republicans on a conference call that he did not have enough COVID-19 tests to test all 100 Senators and would be unable to conduct any rapid testing. Some moderate Republicans protested the decision but were ultimately outranked.
“As much as judges are important, what people want us to be focused on is COVID,” Senator Lisa Murkowski of Alaska said on the call according to reports.
Since the beginning of the Trump presidency, McConnell has clearly stated his goal to stack federal courts with conservative-leaning judges who receive lifetime appointments to their role. And with the help of a Republican-majority Senate until at least January, he has added nearly 200 new judges since 2016. Together, the Trump administration and the Republican Senate have seated more (and younger) tenured judges than all but one other president, Jimmy Carter.
When Trump took office, Republican-appointed circuit judges occupied 40% of the 179 statutory judgeships. Today they occupy well over half. The Senate has filled more empty district courts seats in red states than blue states, leading to logjams in areas that tend to vote for Democrats.
“Judges are being vetted on whether they have these conservative ideological commitments in a much more rigorous way than we saw in past administrations,” said Alicia Bannon, managing director for the Democracy Program at New York University’s Brennan Center for Justice. “You have more conservative judges at the district level and the appellate level, so you may actually see judges confirming and upholding decisions more because you’re seeing shifts to the right on both levels. You may see a growing hostility to certain kinds of civil rights cases, those cases may end up being dismissed at an earlier phase.”
Republicans have dismissed the American Bar Association ratings when they’re unfavorable to their candidates. Senator Ben Sasse of Nebraska took to the floor to call the politically neutral association “a liberal organization that has publicly and consistently advocated for left-of-center positions for more than two decades now.”
Pamela Bresnahan, head of the litigation practice group at Vorys and former chair of the Standing Committee on the Federal Judiciary at the American Bar Association, is frustrated.
“This is an independent committee. What the Senate and Trump did was marginalize that voice,” she said. “If we found someone wasn’t qualified they said we were a bunch of left-wing liberals, and then if we found somebody well-qualified it wasn’t mentioned because that drove against their thesis that we were an independent voice.”
Bresnahan also expressed worry that the Trump administration was not working to nominate local judges who were familiar with their districts.
“A lot of the people that are appointed are not from the jurisdiction where they’re appointed,” she said. “They’re from out of state. Most of them, with a couple of notable exceptions, are super smart and went to fancy schools, but they may not have come from the bar where they’re sitting so they don’t know as much about the history of the cases in that court.”
Carl Tobias, the Williams Chair in law at the University of Richmond School of Law, has seen a noticeable difference.
“Ideology in the appeals courts has certainly changed, and the judges are extremely conservative,” he told Fortune.
The push to continue appointments through unsafe conditions during a global pandemic could point to fears that Democrats may be poised to take over the Senate after this November’s election and that McConnell believes time is of the essence.
McConnell is also facing increased scrutiny in his push for older judges to retire and make way for young Republican picks. The chief judge of the U.S. Court of Appeals for the District of Columbia opened an investigation last month into the role McConnell played in creating the vacancy filled by Walker. Reports by Kentucky’s Courier-Journal found that the leader privately lobbied for a judge to retire so that he could bring Walker to the seat.
“Justin Walker’s nomination was already controversial, but this emerging investigation means an even darker cloud is hanging over his appointment,” wrote Demand Justice executive director Brian Fallon in a statement. “The hearing on Walker’s nomination should not go forward until we know the truth about what ethical lines Mitch McConnell crossed to get Walker this seat. At the very least, McConnell should come clean about whether and when he contacted Judge Thomas Griffith prior to his sudden retirement.”
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