As most of us continue on with our social distancing as recommended by the CDC to help curb the spread of the increasingly deadly pandemic, the members of the United States Senate are back in Washington to do what Senate Majority Leader Mitch McConnell calls “the job we need to do for the American people.”
Is this job dealing with the unprecedented numbers of Americans seeking unemployment benefits? Or making sure that the information being spread is coming from actual public health officials and not certain executives who suggest to scared families that they should consider injecting themselves with disinfectant to stop the spread of the virus?
No. The “essential” job for which Senate Majority Leader McConnell has dragged all senators and staff back to the Hill (even after House leadership, relying on information from the Capitol physician, decided it wasn’t yet safe to return to normal duty) is confirming even more judicial nominees, on his quest to “leave no vacancy behind.” And if his intentions weren’t clear enough, he added, “The pandemic will not prevent us from achieving that goal.”
Yep, you read that right. While the city of Washington, D.C. is on a stay-at-home order until at least June 8th and the Capitol physician has deemed it unsafe to return, Majority Leader McConnell is still demanding that all senators (one of whom has already tested positive for COVID-19, and over half of whom are above 65) throw caution to the wind and jeopardize public safety by traveling across the country to get back to the “essential” job of confirming judges.
All this haste was to begin the confirmation process for Justin Walker, a 38-year old self-described “tax-cutting, Iraq-invading Republican” who was recently narrowly confirmed to the Western District of Kentucky, and is now a nominee to the U.S. Court of Appeals for the D.C. Circuit. Mr. Walker was nominated by President Trump to fill the seat of Judge Thomas Griffith, who will not retire until September of this year — as in, if he is confirmed, he will not be able to take the bench for another five months. This nomination should barely merit mention by Senate leadership at this point, let alone breaking recommended public health guidelines to jam it through.
At 38, he is the youngest nominee to the D.C. Circuit since the 1980s. He was nominated to the Western District of Kentucky in 2019, when he was only ten years out of law school, had never tried a case, and his biggest claim to fame seemed to be his 162 media appearances defending the honor of Brett Kavanaugh during his debacle of a confirmation.
And of course there’s the fact that the Majority Leader has known Mr. Walker since he was in high school. Camaraderie with the Majority Leader is not enough to qualify you for service on the federal judiciary. In their assessment of his preparedness for judicial service, the American Bar Association expressed concern about his lack of experience. In their explanatory letter, they said that it was “challenging” for them to determine how much of his already limited time post-law school was actually spent “in the practice of law.”
What is not challenging to determine is Mr. Walker’s animosity to health care. His hatred of the Affordable Care Act — which gave healthcare to millions of previously uninsured Americans – is splashed all over his writings and media appearances. During his media tour defending Brett Kavanaugh to anyone that would listen, he touts one of Justice Kavanaugh’s greatest achievements as his dissent in National Federation of Independent Business v. Sebelius, which he says created “a roadmap” to declare the ACA unconstitutional. He calls the Supreme Court decision upholding the ACA “catastrophic” and “indefensible.” To pull senators away from the needs of their home states and through airports and public spaces risking heightened exposure during this pandemic all to force a vote on an unqualified, anti-health care judge is the antithesis of the responsibility owed to constituents by their elected officials.
What makes this prioritization by the Majority Leader even more appalling is that this isn’t even the first time in recent weeks that he has neglected the health and safety of Americans to rush to the aid of Mr. Walker. On March 13th, while Congress was negotiating a second COVID-19 relief package, the Majority Leader left his post in D.C. to travel with Justice Brett Kavanaugh down to Louisville for Mr. Walker’s swearing-in to the Western District of Kentucky. The Majority Leader took this opportunity (as he does any) to wax poetic about his takeover of the courts, rebranding his onslaught of anti-LGBT, conservative idealogue judges as “ brave public servants who've been tossed into the media circus and subjected to partisan attacks.”
The irony of the Majority Leader saying that these judges have been subject to “partisan attacks” is a cruel one, as they are the ones who have declared war on our rights as LGBTQ people and everyone living with HIV in their courtrooms, working to dismantle the ACA and holding particular disdain for respecting transgender litigants. Indeed, one such judge, Kyle Duncan, who sits on the U.S. Court of Appeals for the 5th Circuit, went so far as to author a 10 page opinion full of dicta about why courts couldn’t possibly be expected to respect a litigant's pronouns (in a ludicrous proposition that many courts have quickly distanced themselves from).
In case Judge Duncan has any questions about how factually incorrect he is, I invite him to read Lambda Legal’s amicus brief, which we filed in the appeal of his horribly transphobic opinion. In essence, these judges are telling us, “if you come as you are, you may as well not come at all.”
During these uncertain times, we look to our country’s leaders to give us guidance and assurance that our safety is their #1 goal. What they’re giving us is indeed a promise, but not that our country’s recovery is being taken care of. They’re promising us a judiciary overrun with unqualified and demonstrably anti-LGBTQ judges for years to come. But we’ve never backed down from a fight before, and we’re not backing down now.
The courts belong to the people, and Lambda Legal will fight until they belong to all the people.
