May 7, 2020

Democrats Press Judicial Nominee, a McConnell Protégé, on Health Care Views


Judge Justin Walker, President Trump’s pick for an influential appeals court, faced brutal questioning from Senate Democrats on Wednesday over his views on health care policy, as the 37-year-old nominee sought to dispel criticism that he was too inexperienced and ideologically driven for the post.

But during a sometimes surreal hearing before the Judiciary Committee, Democrats homed in instead on his ultraconservative positions, including his comment that the 2012 Supreme Court ruling upholding the Affordable Care Act was “indefensible.”

“Why, in the middle of a pandemic, should we support a nominee who would take away health care for millions of Americans, including those with pre-existing conditions?” asked Senator Dianne Feinstein of California, the top Democrat on the panel.

Judge Walker, who had served only six months on a federal district court before Mr. Trump nominated him last month for the U.S. Court of Appeals for the District of Columbia Circuit, said those comments were made not as a judge, but as “an academic and a citizen engaged in matters of public concern.”

“That was not a commentary on the merits of any particular health care policy,” said Judge Walker, who emphasized multiple times that he would abide by Supreme Court precedent while serving on the bench. “It was a legal analysis about constitutionality.”

Judge Walker, who was raised by a mother he said had struggled with serious health issues and was a cancer survivor, said he understood the importance of access to medical care.

“I thank God every day that she was able to get the medical care she needed,” he said. “As a judge, it is not my job to define policy. It is my job to go where the law leads.”

Democrats seemed unconvinced, suggesting that the judge’s critical statements about the health care decision — including another he made in March at his investiture ceremony, where he again faulted the ruling — meant that he would dismantle the law if given the chance. Judge Walker refused a request by Senator Richard J. Durbin, Democrat of Illinois, to declare that he would recuse himself on cases related to the health care law.

“You have not been the least bit impartial when it comes to the Affordable Care Act,” Mr. Durbin said. “Your legal contempt is obvious.”

Under Senate rules, nominees like Judge Walker can be advanced and confirmed through simple majority votes, meaning Democrats could not block him without defections by majority Republicans. In questioning him on Wednesday, Democrats appeared to be working to show that Republicans were intent on pushing through an opponent of the health care law during a global health crisis, hoping the vote would exact a political cost on Republicans who went along.

Committee Republicans, who led the nominee through mostly sympathetic questioning and a recitation of his stellar academic career, voiced their strong support for Judge Walker after the two-and-half hour proceeding.

“I think you have acquitted yourself well here today,” Senator Lindsey Graham, Republican of South Carolina and the chairman of panel, said as the hearing concluded.

The proceeding itself was grim at moments, with lawmakers and the nominee wearing protective masks as they arrived and members of the panel spread several feet apart on a dais and using a larger hearing room to accommodate social distancing. Members of both parties also participated by video link from their homes and offices, with the audio sometimes breaking up.

Democrats scolded Mr. Graham and said the hearing should not be occurring at all. They said the panel should instead be focused more on the myriad legal and justice system issues related to the coronavirus pandemic, not filling an appeals court seat that will not become open until September.

“This is not an emergency,” said Senator Chris Coons, Democrat of Delaware. “But is clear that it is the top priority of the majority leader.”

Republicans pushed back against the Democrats’ complaints and said that the Senate, like front-line health care workers and others providing essential services during the outbreak, should be on the job. One mocked the idea that Judge Walker’s ties to Mr. McConnell, who has known him since high school, should be viewed negatively.

“You stand accused of actually knowing a U.S. senator or two,” Senator John Cornyn, Republican of Texas, told Judge Walker wryly at one point. “I don’t know how you become a federal judge without knowing a United States senator.”

Nominations to the District of Columbia Circuit Court can be contentious because the court — often referred to as the nation’s second most important, after the Supreme Court — delves into so many of the policy and political battles concerning the federal government. As a result, both parties are aggressive in placing their preferred candidates on its bench.

Frustrated at Republicans blocking President Barack Obama’s nominees to the appeals court, Senate Democrats changed the chamber’s rules in 2013 to allow nominees to be advanced and confirmed by simple majority vote, upending the entire confirmation process. The change allowed Mr. McConnell to pursue a strategy of placing scores of younger conservatives on the federal bench over Democratic protests.

Judge Walker would be the youngest person seated on the appeals court in Washington since 1983, and his limited professional job history remained a sticking point for Democrats.

“In his short time on the bench, Judge Walker — just 37 years old — has had virtually none of the experience one would expect of a district court judge before elevation to circuit,” Ms. Feinstein said. “He has not presided over any bench or jury trials. He has written opinions in only 12 total cases.”

Republicans expressed no qualms about his experience. And though the American Bar Association had rated Judge Walker “unqualified” for his service at the district court level before he was confirmed in October, the group on Tuesday issued a finding that he was “well qualified” for the more academic appeals court position.

“There is a long and rich tradition of academics being nominated to federal appellate court positions,” Judge Walker said.

Democrats took exception to numerous past statements by Judge Walker that they saw as partisan, and Senator Patrick J. Leahy of Vermont said the nominee had clearly aligned himself with the Republican agenda and espoused the views that “Donald Trump wants to see in his nominees.”

Democrats also queried the nominee on his fervent defense of Justice Brett M. Kavanaugh, for whom Judge Walker worked as a clerk, during the bitter confirmation fight over Justice Kavanaugh’s ascension to the Supreme Court. Judge Walker said he viewed both Justice Kavanaugh and former Justice Anthony M. Kennedy, for whom he also worked at the Supreme Court, as mentors and role models.

He would defend them, the judge said, “until the cows come home.”



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