Judge Justin Walker – Nominee to the U.S. Court of Appeals for the D.C. Circuit

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.


[1] See Mark Joseph Stern, Trump Elevates Unqualified Judge As a Reward For Defending Kavanaugh, Slate, Apr. 3, 2020, https://slate.com/news-and-politics/2020/04/justin-walker-mcconnell-trump-dc-circuit.html.  

[2] Sen. Comm. on the Judiciary, 116th Cong., Justin Walker: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] Id.

[5] Id. at 49-50.

[6] See Alison Durkee, Mitch McConnell Pressures Judges to Retire So Trump Can Appoint Replacements, Vanity Fair, Mar. 17, 2020, https://www.vanityfair.com/news/2020/03/mitch-mcconnell-pressures-judges-to-retire-trump.  

[7] See Letter from Katie O’Connor to Chief Judge Sri Srinivasan, Mar. 19, 2020 (available at https://h29zmgjkh3vbtzvz6gfub6meu.actbot.co/wp-content/uploads/2020/03/letter-to-DC-Circuit-re_-Thomas-Griffith-retirement.pdf?link_id=4&).

[8] See United States v. Philip Morris USA Inc., 561 U.S. 1025 (2010).

[9] See Walker, supra n. 1 at 32-33.

[10] Id. See also United States v. Todd, 3:17-cr-77 (W.D. Ky.).

[11] Matthew Glowicki, Judge Allows Drive-In Service at Louisville Church, Says Fischer ‘Criminalized’ Easter, Louisville Courier Journal, Apr. 11, 2020, https://www.courier-journal.com/story/news/2020/04/11/covid-19-kentucky-judge-grants-churchs-request-hold-services/2976560001/.  

[12] See On Fire Christian Cntr., Inc. v. Greg Fischer, et al., Civil Action No. 3:20-CV-264-JRW (W.D. Ky. Apr. 11, 2020) (available at https://www.courtlistener.com/recap/gov.uscourts.kywd.116558/gov.uscourts.kywd.116558.6.0.pdf).  

[13] See Josh Blackman, Courts Should Not Decide Issues That Are Not There, Volokh Conspiracy, Apr. 12, 2020, https://reason.com/2020/04/12/courts-should-not-decide-issues-that-are-not-there//.  

[14] See id. at 3.

[15] See id. at 7-8.

[16] See id. at 8.

[17] See Blackman, supra n. 13.

[18] See On Fire, supra n. 12 at 17.

[19] See id. at 6.

[20] Id.

[21] See id. at 2.

[22] See Blackman, supra n. 13.

[23] See id. at 10 n. 51, 17 n. 81.

[24] 805 F.3d 228 (6th Cir. 2015) (en banc) (holding that preventing plaintiffs from proselytizing violates their rights under the Free Exercise clause).

[25] 289 F.3d 417 (6th Cir. 2002) (holding that City development decisions that had disparate impact on church did not violate church’s Free Exercise rights).

[26] See United States v. Anderson, CRIMINAL ACTION NO. 3:19-CR-117-JRW-1, 2020 U.S. Dist. LEXIS 8048 (W.D. Ky. Jan. 15, 2020).

[27] See id. at *2 (citing United States v. Brown, 828 F.3d 375, 384 (6th Cir. 2016).

[28] See id.

[29] Id.

[30] 828 F.3d 375 (6th Cir. 2016).

[31] Id. at 383.

[32] Notably, on this point, Walker cites Shakespeare’s King John rather than a precedent from the Sixth Circuit.

[33] United States v. Perkins, CRIMINAL ACTION NO. 3:19-CR-149-JRW, 2020 U.S. Dist. LEXIS 53762 (W.D. Ky. Mar. 27, 2020).

[34] Id. at *3.

[35] Id.

[36] See id.

[37] Id. at *4 n. 10.

[38] See Martin & Bayley v. O’Bryan Brown & Toner PLLC, 2020 U.S. Dist. LEXIS 19902 (W.D. Ky. Jan. 31, 2020).

[39] Milburn v. Watts, 2020 U.S. Dist. LEXIS 47737 (W.D. Ky. Mar. 17, 2020); Taj Graphics Enters. V. Sills, 2020 U.S. Dist. LEXIS 52662 (W.D. Ky. Mar. 26, 2020)

[40] See Wirthwein v. Portfolio Recovery Assocs., CIVIL ACTION NO. 3:19-CV-335-JRW-CRL, 2020 U.S. Dist. LEXIS 59128 (W.D. Ky. Apr. 3, 2020).

[41] Coffey v. Equian, CIVIL ACTION NO. 3:19-CV-43-JRW, 2020 U.S. Dist. LEXIS 56368 (W.D. Ky. Mar. 31, 2020).

[42] See id. at *4.

[43] Id.

[44] See, e.g., Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1041-42 (6th Cir. 1991) (citations omitted) (noting multiple grounds on which district court can deny leave to amend including “if the complaint as amended could not withstand a Fed. R. Civ. P. 12(b)(6) motion” and, separately, “where such leave is not sought.”).

[45] See, e.g., Fox News @ Night, July 17, 2018, Fox News Network.

[46] See Ryan Lovelace, Ex-Clerk to Kavanaugh: Potential Pick “Would Not Go Wobbly” on Conservatives, Nat’l Law Journal, June 29, 2018, https://www.law.com/nationallawjournal/2018/06/29/ex-clerk-to-kavanaugh-potential-pick-would-not-go-wobbly-on-conservatives/.  

[47] Evening Edit, Sept. 28, 2018.

[48] See Justin Walker, FBI Independence as a Threat to Civil Liberties: An Analogy to Civilian Control of the Military, 86 Geo. Wash. L. Rev. 1012 (July 2018).

[49] See id. at 1041.

[50] Id. at 1070.

[52] Justin Walker, Compassion for a Homeless Man, Justin Walker’s Campaign Diary, Jan. 10, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_compassion.html.  

[53] Justin Walker, Who Sabotaged Howard Dean’s Campaign, Feb. 4, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_deancamp.html.  

[54] Justin Walker, Closed-Minded Liberals, Feb. 18, 2004, https://today.duke.edu/showcase/mmedia/features/campaigndiary/campaign_yellowsprings.html.  

[55] Id.

[56] Id.

[57] Justin Walker, Worthless Democrats, The Duke Chronicle, Sept. 26, 2002, https://issuu.com/dukechronicleprintarchives/docs/the_chronicle_2002-09-26_sm.  

8 Comments

  1. Even if every single one of your characterizations of Walker’s opinions and jurisprudence are completely on target, it misses the point. Democrats have been appointing large numbers of judges for the last 50+ years purely because of their political reliability, and often despite the fact that they have larded up their opinions with poor analysis and factual shortcomings. They were chosen because they were willing to do so to reach unconstitutional conclusions.
    But you have at least omitted an important fact in Walker’s TRO against the Louisville mayor’s order: The mayor was threatening people not just with a fine but also with with a forced 14 day quarantine simply for setting in their cars in a parking lot with other occupied cars parked in it. The civil vs. criminal distinction is BS. The mayor was targeting these people because of their religious beliefs, and deserved every bit of the contempt Walker showed him. The governor of Kentucky needs to be treated equally roughly since his behavior on the same issue is equally contemptable.

    Like

    • The claim that no enforcement action was threatened against drive-in church services seems to rely on the Louisville Mayor’s after-the-fact claims. The Mayor seems to be fibbing, and the city refused to respond to requests that it clarify its stance. The Volokh Conspiracy blog has a post which quotes extensively from the Mayor’s many earlier, contrary statements: https://reason.com/2020/04/13/some-backstory-on-the-louisville-free-exercise-clause-drive-in-church-services-case/

      The Walker post really should be redone to correct the record.

      Like

      • Steve,

        Thank you for commenting, and for raising the Volokh Conspiracy article. Upon reviewing the article, my understanding is not that the city’s input was solicited and that the city declined to provide it, but, rather, that the city had not filed a response to the TRO request before it was granted the next morning. As such, the original statement in the write-up (that the TRO was granted without soliciting the city’s response) is accurate. That being said, I’ve made your comment public to allow others to read the full piece on the Volokh Conspiracy and get the background included.

        Regards,

        Harsh Voruganti

        Like

    • James,

      Thanks for commenting and I appreciate your perspective. I hope we can all agree that we are looking ultimately for judges who approach each case without a bias (either political or ideological) and who research and write opinions that incorporate and engage with caselaw and precedent.

      As such, I wanted to address the quarantine issue you raised. As far as I can see, the opinion does not rely on any statements made by the Mayor suggesting that worshippers would be required to quarantine. It does cite a statement made by the Governor relating to mandatory quarantines, but, again, there is no suggestion that this quarantine is specifically directed at religious gatherings. Rather, the Governor’s statement suggests that any gathering made in violation of stay at home orders may draw mandatory quarantines. (As you already be aware, the analysis for restrictions that single out religious activities for disfavor is different than for facially neutral laws that incidentally burden religious activities.) To the extent that the Mayor has made other statements relating to mandatory quarantines, the opinion doesn’t cite them, and (I assume, therefore) doesn’t rely on them.

      Best,
      Harsh Voruganti

      Like

      • My concern is much more with the proper outcome, not whether all of the Marcus of Queensberry’s rules were followed. The city is now making public statements about not intending to take any enforcement actions. On what basis are they to be taken at their word? Isn’t trying to bully citizens exercising their constitutional rights in a way that is safe with an empty threat at least as bad as trying to enforce the prohibition?
        I actually read the opinion, and frankly, the left’s response to it is hysterical. Also to a person, everyone of those leftists would be cheering if a progressive judge wrote an opinion that was the mirror image of Walker’s and reach the opposite conclusion. And they would do so in part because their judge had reached the demonstrably wrong opinion.
        BTW, Walker’s opinion explicitly notes the threat of having police take license plate numbers and having police attempt to dissuade people from participating and footnotes his source for those factual assertion.
        The fact that you can generate so much outrage over Walker’s florid opinion and yet voice none about the police state behavior of Louisville and Kentucky executive’s speaks volumes about the moral poverty of your position. But then you’re starting from the position that a republican should never be allowed to chose appeals court judges that are likely to be politically reliable, unlikely to drift left, and willing to aggressively attack the decade of bad precedent progressive judges have created, you’ve got to use what ever attack you can find.

        Like

      • My position is that judges should not base their decisions on politics regardless of their political background. As such, yes, I agree that judges should not be “politically reliable” but that’s a standard I apply to all judges, regardless of party. As we are approaching this discussion from fundamentally varied viewpoints, I think it’s best to let it rest at this point. Thank you for engaging and best of luck in the future.

        Like

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