Judge Walker has been nominated to the D.C Circuit, a court that handles a large caseload on federal agency actions and regulations – like those safeguarding health care, workplace protections, and the environment.

Walker was deemed “not qualified” by the American Bar Association for his seat on a district court just six months ago, and he is already being elevated to the D.C. Circuit.

WASHINGTON — Today, U.S. Senator Chris Coons (D-Del.), a member of the Senate Judiciary Committee, questioned Judge Justin Reed Walker, a nominee to the D.C. Circuit, during his confirmation hearing. In committee, Senator Coons voted against Walker’s nomination to be United States District Judge for the Western District of Kentucky last October. Senator Coons will vote against Walker’s confirmation to the D.C. Circuit.

“[I]n an article you wrote in 2018, you said the Supreme Court’s decision upholding the Affordable Care Act is ‘indefensible,’ the Taxing Clause rationale ‘weak’ and its acceptance ‘catastrophic.’ As we sit here today, the Trump Administration continues to argue that courts should strike down the Affordable Care Act. Do you stand by your description of the decision upholding that act as indefensible?” asked Senator Coons, noting Judge Walker’s criticism of the Supreme Court’s decision upholding the Affordable Care Act. “I’m left questioning why any litigant would trust you to be open-minded and fair in deciding a case about the ACA given your previous advocacy.”

Regarding a 2018 article by Walker, Senator Coons questioned: “[Y]ou wrote the FBI as an agency should not be independent and the director must think of himself, and I think I’m quoting, as ‘an agent of the President.’ In my view, that is an overly sweeping view of executive authority. Could a president in your view appropriately direct the FBI to investigate his political opponents?”

Full audio and video available here. A transcript is provided below.

Sen. Coons: Mr. Chairman, if I could. We should - in the middle of a health care and economic crisis - not be having a hearing on a partisan judicial nominee for a vacancy that won’t even be available for 119 days. In the last 119 days a quarter of a million people have died around the world and America now has more deaths than any country in the world, 1.2 million cases and 70,000 deaths. Some of my colleagues have compared our service here today with the service of first responders responding to an emergency. This is not an emergency, but it’s clear it is the top priority of the Majority Leader to have this entire Judiciary Committee and all of the workers who were called back to this Capitol and all of our staff who were called back here, so that we could have this confirmation hearing which I frankly think should not be anywhere near our first priority in response to this national health pandemic.

Sen. Coons: If I could, Judge Walker, in an article you wrote in 2018, you said the Supreme Court’s decision upholding the Affordable Care Act is ‘indefensible,’ the Taxing Clause rationale ‘weak’ and its acceptance ‘catastrophic.’ As we sit here today, the Trump Administration continues to argue that courts should strike down the Affordable Care Act. Do you stand by your description of the decision upholding that act as indefensible?

Hon. Judge Walker: Senator, as I said earlier, the decision at issue there NFIB v. Sebelius is 100 percent binding law on me as a district judge –

Sen. Coons: That is clear, you have stated that. Will you stand by your public assertions, your advocacy that its decision is indefensible?

Hon. Judge Walker: And while I made statements as an academic and as a private citizen, I don’t think it’s appropriate now for me as a sitting judge to go beyond what I said in my role at the time. 

Sen. Coons: I’ll just say that you yourself said earlier a judge must approach every case with an open mind and in your exchange with Senator Durbin, I’m left questioning why any litigant would trust you to be open-minded and fair in deciding a case about the ACA given your previous advocacy.

Sen. Coons: In a 2018 article, you wrote the FBI as an agency should not be independent and the director must think of himself, and I think I’m quoting, as ‘an agent of the President.’ In my view, that is an overly sweeping view of executive authority. Could a president in your view appropriately direct the FBI to investigate his political opponents?

Hon. Judge Walker: Senator, the article in question is really a historical exploration of the FBI’s infringements on civil liberties and to the extent your question goes to the role of the relationship between the President and the FBI with regard to the liberties of political minorities, I argued in the article, before I was a judge, I argued in the article that it was the very lack of supervision by presidents during Director Hoover’s tenure of the FBI that allowed some of the worst civil liberty abuses…

Sen. Coons: And Judge, while I may agree with your characterization of the lack of appropriate oversight that tolerated or permitted Hoover’s overreach and the FBI’s inappropriate actions, I’ll just remind you that contemporaneously roughly in September of 2018 after John Dean testified at then-Judge Kavanaugh’s hearing, you called John Dean a ‘disgraced lawyer.’ This is on Fox News, I think. You said and I quote about John Dean, ‘This is the man who betrayed his country and then betrayed his friends. He’s not fit to touch Judge Kavanaugh’s shoes.’ Given the context, I consider John Dean a hero for telling the truth about Watergate and exposing the ways in which the Nixon Administration and President Nixon inappropriately used his power as president in ways that were historic in their overreach. So given this context where you’ve said that the FBI should consider itself as an agent of the President, and you’ve attacked John Dean as someone who betrayed his country and then betrayed his friends, please help me understand why you made that comment about John Dean and what that should tell me about your view of independence of the FBI and appropriate actions by a president.

Hon. Judge Walker: Senator, I absolutely love American history and I mean this sincerely. I know that there’s, you may not believe me –

Sen. Coons: I don’t think there’s a Senator here who will say they hate American history, where are we going with this?

Hon. Judge Walker: No, no I want you to know what I’m about to say is sincere. I would relish the opportunity to sit over lunch and talk American history with you and share your opinion and my opinion. I think part of what makes history so much fun is that people can have different opinions and different perspectives. Sitting here as a sitting district court judge, I don’t think it’s appropriate for me to comment on John Dean, but whether I’m lucky enough to be confirmed or not, I would love to talk Watergate history with you, and I’m quite sure I would learn a lot.

Sen. Coons: I’ll move to a last question if I can, Your Honor. The ABA found you were not qualified for the judgeship you currently hold due to a lack of trial experience. When I asked you written questions about motions, arguments, trials in federal court, you were clear that you had never performed these critical tasks, so I’m bluntly left wondering why you’re getting a promotion to one of the most important courts in our entire federal system. At your investiture you said, ‘Although we celebrate today, we cannot take for granted tomorrow or we will lose our courts and our country to critics who call us terrifying and describe us as deplorable.’ Who is ‘we’ in that statement you made at your investiture?   

Hon. Judge Walker: Senator, in that part of the investiture speech and others, I was talking about those who approach judging with the respect for the rule of law and the separation of powers and fidelity to text and the belief that a judge should say what the law is, and not what he or she thinks that the law should be. And with regard to the first part of your question about the ABA’s rating, I do think there is a reason that yesterday the ABA gave me their highest rating of ‘well qualified’ based on my experience, integrity, and temperament.

Sen. Coons: Well, my concern is that as a sitting judge you seem to have thought it was appropriate to talk about winning a battle for the courts and have conveyed yourself and your opinions across a number of different topics, texts, and times that does not create the sense of an unbiased approach to critical and key questions. I recognize I’ve exceeded my time and I will thank the Chairman for his patience, but you know I, frankly, at a time when we have lost more Americans than died in the Vietnam War in a national health pandemic, I don’t see the urgency of this confirmation hearing. Perhaps we will have that chance to debate American history, but I feel a sense of urgency about the application of principle to the future and respect for precedent. I’m gravely concerned about where you are headed on those trajectories. I’ll have more questions for the record.

###