Last October, a former clerk to Justices Anthony Kennedy and Brett Kavanaugh was appointed to the U.S. District Court for the Western District of Kentucky, despite having never tried a single case.  What the nominee lacked in trial experience, however, he made up for in media experience, having made 162 media appearances in support of Kavanaugh’s Supreme Court confirmation.^[1]  Now, despite only being a judge for six months, Judge Justin Walker has been handpicked by Senate Majority Leader Mitch McConnell, with the recommendation of Kennedy and Kavanaugh, for elevation to the U.S. Court of Appeals for the D.C. Circuit.

Background

A native of the Bluegrass state, Justin Reed Walker was born in 1982 in Louisville.  He attended Duke University and Harvard Law School, getting his J.D. in 2009.^[2]  During law suit, Walker worked as a summer associate at Gibson Dunn & Crutcher LLP in Washington D.C.  He was hired by the firm as an Associate upon graduation.^[3]  Walker left the firm on hiatus to clerk for Justice Brett Kavanaugh (when he was on the D.C. Circuit) and then for Justice Anthony Kennedy.^[4]

In 2013, Walker returned to Louisville to practice law on his own.  He left in 2019 to join Dinsmore & Scholl LLP as a Partner of Counsel.  Additionally, since 2015, Walker has been a Professor with the University of Louisville Brandeis School of Law.

In June 2018, Walker expressed his interest in a judgeship with Sen. Mitch McConnell.^[5]  Walker was nominated for a vacancy on the U.S. District Court for the Western District of Kentucky, to a seat opened on June 9, 2019, when Judge Joseph McKinley moved to senior status.  While Walker was rated “Unqualified” for the seat by the American Bar Association, he was nonetheless confirmed on October 24, 2019 on a 50-41 party-line vote, and has served on the Court since.

History of the Seat

Walker has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit to be vacated on September 1, 2020 by Judge Thomas Griffith.  Griffith’s retirement came days after news broke that McConnell was pressuring judges to move to senior status to open vacancies for the Administration to fill.^[6]  As a result, some liberal groups have alleged a corrupt bargain, and one has written to Chief Judge Sri Srinivasan on the D.C. Circuit asking for a formal investigation.^[7]  To this date, no investigation has been announced.

Legal Experience

Walker’s limited litigation experience almost entirely consists of practicing on his own.  His stints at firms are limited to a short time as an Associate at Gibson Dunn (where he represented Philip Morris in a RICO action with the federal government)^[8] and his current position at Dinsmore & Scholl LLP.

Most of his time as a solo practitioner, Walker was a full time law professor.  As such, by his own account, Walker has not tried a single case as primary counsel.^[9]  Additionally, he has served as Associate Counsel in only a single criminal case.^[10] 

Jurisprudence

Despite only being a judge for around six months, Walker has already authored a number of opinions that can be analyzed.  In review, critics may point to the sharp and sometimes intemperate tone of the opinions, as well as their frequently cursory analysis of legal and factual issues.

Church Restrictions

In 2020, Walker was assigned a lawsuit brought by the On Fire Christian Center challenging a regulation by Mayor Greg Fischer that restricted gatherings on Easter, including religious gatherings.^[11]  Walker granted an injunction preventing the regulation from being enforced against On Fire.^[12]  Notably, Walker granted the injunction on an ex parte basis, meaning that he did not give the City an opportunity to respond to the initial petition.^[13] 

In his opinion, Walker was sharply critical of the regulation, accusing the mayor of having “criminalized the communal celebration of Easter.”^[14]  However, there are a few issues with this statement.  First, as Walker acknowledges later in the opinion, Fischer had not threatened any criminal sanctions against anyone who violated his civil restriction.^[15]  Walker papers over this fact by arguing that Fischer’s order authorized the Louisville Metro Police to hand out information relating to the risk and follow up with individuals who had attended events to ensure their health and safety and that these actions constitute “law enforcement.”^[16]  Second, the City had not intended any enforcement action based on the Mayor’s regulations, which the City could have informed the Court of, had Walker chosen to hear from both sides before issuing his order.^[17]  Given this fact, Walker’s statement that adherents could “risk arrest, mandatory quarantine, or some other enforcement action”^[18] seems to fall contrary to the evidence in the case.

Furthermore, Walker’s opinion diverts from legal analysis to include editorial comments regarding unrelated issues, from abortion and birth control^[19] to Sen. Robert Byrd’s disavowed membership in the Ku Klux Klan.^[20]  Walker further takes out more time to quote directly from the Bible and detail the history of “political persecution” faced by Christians.^[21]  Walker’s language in the opinion has been criticized, even by conservatives, as intemperate and “over-the-top.”^[22] 

In contrast, Walker arguably fails to engage fully with Supreme Court and Sixth Circuit caselaw on the Free Exercise question.  The entire opinion cites only two Sixth Circuit cases, and neither are cited on the substantive questions of whether the Free Exercise Clause has been violated.^[23]  Surprisingly, on-point Sixth Circuit cases on the Free Exercise Clause such as Bible Believers v. Wayne County^[24] and Prater v. City of Burnside^[25] are nowhere to be found in Walker’s opinion. 

Motions to Suppress

As a district court judge, Walker has had the opportunity to rule on motions to suppress brought by criminal defendants, which he has usually denied.  For example, in one case, after a defendant’s house was searched pursuant to a warrant, the defendant challenged the sufficiency of the affidavit upon which the warrant was issued.^[26]  The defendant argued that, under Sixth Circuit precedent, the mere fact that he was a drug dealer could not support an inference that drugs would be found in his home.^[27]  Walker acknowledged this precedent but then sidestepped it, arguing that this case was different because the defendant here was a “full-time” drug dealer.^[28]  Walker noted:

“Full-time drug dealers obviously do not run their illegal operations from corporate headquarters registered with the Secretary of State.  They use their cars, their stash houses, and their homes.”^[29] 

Walker’s ruling here arguably conflicts with Sixth Circuit precedent in United States v. Brown.^[30]  In Brown, the Sixth Circuit overturned a search of the home of a known drug dealer where the warrant affidavit did not include “facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence.”^[31]

If such facts exist in Anderson, Walker’s opinion does not highlight them.  Rather, Walker relies almost exclusively on the defendant’s status as a drug dealer and the fact that he was observed driving to and from a stash house and his home.^[32]  Walker’s distinction between a full-time and part-time drug dealer also doesn’t connect back to Brown, which doesn’t focus on such a distinction.

In another opinion, Walker denied a defendant’s request for a Franks hearing to probe potential false statements made in a search warrant affidavit.^[33]  Walker held that the defendant was not entitled to a hearing because he had failed to make the requisite preliminary showings.^[34]  However, in his ruling, Walker criticizes the motion for being “frivolous” and suggests that defense counsel had made “false statements” and “material omissions.”^[35]  Walker’s accusation appears to arise from two contradictory statements made by defense counsel during oral argument on the motion.^[36]  Walker also dismisses a secondary argument made by the defense with two words: “Wrong again.”^[37]

Civil Rulings

Among the civil rulings he has made, Walker issued notice to a plaintiff that he would sua sponte grant summary judgment against one of their claims unless they withdrew the claim or responded to the court’s notice,^[38] remanded cases from federal court for lack of diversity jurisdiction,^[39] and dismissed a plaintiff’s case for failure of prosecution, while acknowledging lack of notice of dismissal but noting that any such notice would be “futile.”^[40]  In one notable decision, Walker dismissed the discrimination claims made by a terminated employee, finding that her complaint lacked sufficient allegations to support her claim.^[41]  Interestingly, Walker dismissed the complaint with prejudice arguing that any amendment would be futile.^[42]  Walker based this decision on the plaintiff’s failure to amend as a matter of course within 21 days of her initial complaint and her not-specifically requesting permission to amend.^[43] This framing is particularly interesting because Sixth Circuit precedent treats the futility of amended complaints as a separate analysis from a party’s failure to seek such remedies.^[44]  Walker does not explain in his opinion why a plaintiff’s failure to specifically seek amendment relates to the “futility” of such amendment.

Writings

As a law professor, Walker has been fairly vocal on legal and policy issues.  This is clearly a well-ingrained characteristic, as Walker was an active writer even as a college student.

Kavanaugh Confirmation

During the campaign to confirm Brett Kavanaugh in 2018, Walker was one of his former boss’ most prominent surrogates on tv and in the media.  In some of his appearances, Walker argued that Kavanaugh would comply with judicial precedents such as Roe v. Wade.^[45]  In others, Walker argued that Kavanaugh was a solid conservative whose vote on conservative issues was beyond question.^[46]  Furthermore, after the allegations by Dr. Blasey Ford were released, Walker argued that the allegations would have been investigated in July had they been deemed credible.^[47]

FBI Independence

In July 2018, Walker authored an article criticizing calls for an independent FBI, arguing that similar to the military, civilian control of the FBI was necessary to prevent civil liberties violations.^[48]  In the article, Walker chronicles the history of civilian control of the military and abuses committed by the FBI, noting that the agency engaged in “illegal and warrantless wiretaps, buggings, burglaries, destruction of files, and harassment of political minorities, the gay community, and African Americans.”^[49]  In conclusion Walker argues: “…the FBI Director should not think of himself as the Nation’s Protector; instead, he must think of himself as an agent of the President.”^[50] 

Political Reporting

Notably, as a college student, Walker spent two months crossing the country trailing Democratic presidential candidates during the 2004 election and writing missives from his experiences.^[51]  In his posts, Walker discusses the state of the race, the relative merits of the candidates he covers, and his views on their ultimate match-up against President Bush.  For example, in one post, Walker describes an incident in which Rep. Dennis Kucinich visited a homeless man sleeping in a garage.^[52]  In another, he suggests that Howard Dean “sabotaged his own campaign with a loose temper and a glib mouth.”^[53] 

Interestingly, some of his posts display a broader critique of the Democratic Party rather than an “objective” look at the race.  For example, in one post describing the liberal town of Yellow Springs, Ohio, Walker calls it “a haven for hippies who never grew up,” sounding significantly older than his own 21 year old self.^[54]  He notes that “every person is unusual” in the town.^[55]  At the same time, Walker criticizes the town, stating that the town “lacks what liberals celebrate: tolerance, diversity, and change.”^[56]

Similarly, in a 2002 article provocatively titled “Worthless Democrats”, Walker excoriates the party for not taking a position on the upcoming Iraq War, stating:

“[Democrats] are weak leaders who speak softly and carry a rubber stamp.  They neither agree with the president, nor oppose him.”^[57]

Overall Assessment

When Walker was nominated to the District Court last year, we praised his “obvious intellect.” while noting his youth and lack of experience.  While his swift elevation over conservatives with exponentially more experience and expertise speaks to the power of his connections, it nonetheless raises an expected confirmation fight.

Specifically, Walker’s brief tenure as a district court judge can be mined by opponents to raise questions about his judicial temperament.  Walker’s writing is entertaining, but can come across as intemperate, particularly when considering the positions of litigants that Walker disagrees with.  More concerningly, Walker’s writing frequently glosses over key facts and precedent, and, as noted above, sometimes fails to engage with such precedent altogether.  For example, a casual reading of Walker’s opinion in On Fire may lead one to conclude that the judge cannot tell the difference between civil and criminal sanctions.  None of this is to suggest that the ultimate conclusions in Walker’s opinions are necessarily wrong or that they violate precedent.  Rather, the cursoriness of much of Walker’s legal analysis makes it difficult to evaluate the conclusions without conducting the analysis independently.

None of this is to say that Walker cannot grow into his position on the bench or be a great judge on the D.C. Circuit.  But, when Walker was first nominated, many suggested that he was being prematurely elevated while lacking the legal skills and experience to be a federal judge.  Walker’s tenure so far will not put those criticisms to rest.

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