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.  

Greg Katsas – Nominee for the U.S. Court of Appeals for the D.C. Circuit

The U.S. Court of Appeals for the D.C. Circuit is the first among equals of the federal appellate courts.  As the D.C. Circuit’s jurisdiction covers the seat of federal government, it has the authority to review the rulemaking of the federal administrative bureaucracy, giving its judges enormous influence.  As a result, nominations to the D.C. Circuit attract more controversy than any other inferior court, and who a President chooses to nominate to the D.C. Circuit is an important signal of their priorities.  For his first nomination to this important court, President Trump has selected one of his assistants: Greg Katsas.

History of the Seat

During the Obama Administration, Republicans used the filibuster to maintain a Republican advantage on the D.C. Circuit.  The importance of the court largely motivated the use of the “nuclear option” to eliminate the filibuster on judges.  As a result, the D.C. Circuit today has a 7-3 majority of Democratic appointees among its active judges (although if the senior judges are taken into account, the Circuit still has a 9-8 Republican majority).  Later in the Administration, the D.C. Circuit’s Chief Judge, Merrick Garland, was nominated by President Obama for the Supreme Court vacancy caused by the death of Justice Antonin Scalia.  The Republican majority of the U.S. Senate, however, declined to process the nomination, and Garland continues to serve as Chief Judge.

Katsas has been nominated for a vacancy that opened upon the retirement of Judge Janice Rogers Brown.  Brown, a conservative and libertarian thought leader, announced her retirement in July 2017.[1]  On July 10, Katsas submitted his resume to White House Counsel Don McGahn.  Katsas was officially nominated on September 7, 2017.

Background

Gregory George Katsas was born in 1964 in Boston to Greek immigrant parents.  After getting an A.B. from Princeton University in 1986, Katsas attended Harvard Law School, where he was executive editor of the Harvard Law Review.  After graduating from law school, Katsas clerked for Judge Edward Becker on the U.S. Court of Appeals for the Third Circuit as well as then-Judge Clarence Thomas on the U.S. Court of Appeals for the D.C. Circuit.  Upon Thomas’ elevation to the Supreme Court, Katsas clerked for him in the 1991-92 term.  After his clerkship, Katsas joined the D.C. office of Jones Day, becoming a partner at in 1999.

After the election of President George W. Bush in 2000, Katsas joined the Department of Justice as the Deputy Assistant Attorney General in the Civil Division, supervising the Division’s appellate attorneys.  In 2006, Katsas moved to the Office of the Attorney General, serving as Principal Deputy Associate Attorney General.  In 2007, Katsas also became Acting Associate Attorney General upon the resignation of William Mercer.  He served until the confirmation of Kevin O’Connor to the role in 2008.  Upon O’Connor’s confirmation, Katsas served as the Assistant Attorney General for the Civil Division.

In 2009, upon the election of President Barack Obama, Katsas returned to Jones Day, working in the firm’s Issues and Appeals section.  Upon the election of President Donald J. Trump in 2016, Katsas joined the White House as Deputy Assistant to the President and Deputy White House Counsel.  He currently serves in that capacity.

Political Activity

Katsas is a political conservative and virtually all his political contributions have been to Republicans.[2]  Among his more prominent contributions, Katsas donated $2300 to Sen. Ted Cruz’s Presidential Campaign.[3]  Katsas also donated $1000 to Sen. Chuck Grassley, who as Chairman of the Senate Judiciary Committee, will oversee Katsas’ confirmation.[4]  Katsas’ wife, Simone, has also donated exclusively to Republicans, including $3700 to Cruz, $2700 to President Trump’s campaign, and $2000 to the Mitt Romney campaign in 2012.[5]

Additionally, Katsas served as an advisor on the Bush-Cheney campaign in 2000, and served as a legal advisor during the Florida Recount process.

Legal Career

Given the breadth of Katsas’ legal career, we have broken it down into three main sections for analysis: his work at Jones Day; his work at the Department of Justice; and his work at the White House Counsel’s Office.

Jones Day (1992-2001; 2009-2017)

After his clerkship with Justice Thomas, Katsas joined the Issues and Appeals section of the litigation group of Jones Day as an associate.  This involved both trial and appellate work, including briefing at the U.S. Supreme Court.  In 1999, Katsas was elevated to be a partner at Jones Day.  As noted earlier, Katsas was also a legal observer in Bush v. Gore.

While Katsas left Jones Day in 2001 to go to the Justice Department, he returned in 2009 following the election of President Obama.  During his second stint at Jones Day, Katsas notably led the challenge to the individual mandate of the Affordable Care Act.[6]  Katsas was one of the attorneys to appear before the Supreme Court, arguing that the suit was not barred under the Anti-Injunction Act.[7]  Katsas also represented Florida in its attempt to purge alleged fraudulently registered voters from its voter rolls.[8] He was also involved in a successful challenge to recess appointments to the National Labor Relations Board (NLRB) made by President Obama.[9]

In addition, Katsas also represented RJR Nabisco, Inc. in a successful action to reverse a decision holding that the Racketeer Influenced and Corrupt Organizations Act (RICO) had extraterritorial application.[10]

Department of Justice (2001-2009)

In 2001, Katsas joined the Department of Justice as the Deputy Assistant Attorney General.  In this capacity, Katsas supervised the Civil Division’s appellate attorneys and argued several controversial cases before the federal court of appeals.  In one of his earliest cases, Katsas defended actions to prevent the implementation of Oregon’s Assisted Suicide Law.[11]  Katsas also defended the government in a number of significant national security cases, including actions involving the secrecy of immigration hearings,[12] and the war-making powers of the president.[13]  Additionally, Katsas sued to prevent the disclosure of government records about Vice President Cheney’s energy policy task force,[14] and to defend a statute requiring universities accepting federal funding to allow military recruiters on campus.[15]

In 2006, upon moving to the Office of the Attorney General, Katsas handled several deeply divisive appeals. Notably, Katsas was the primary appellate attorney defending the federal Partial-Birth Abortion Ban.[16]  Katsas also argued the Boumediene v. Bush case at the D.C. Circuit level, defending the Military Commissions Act of 2006, which suspended the writ of habeas corpus, as constitutional.[17]  The Supreme Court ultimately struck down the law.[18]

Late in his tenure at the Department of Justice, Katsas argued before the Ninth Circuit that the Pledge of Allegiance did not violate the Establishment Clause.[19]  He also argued at the Supreme Court against an Eritrean prison guard seeking asylum in the United States.[20]

White House Counsel’s Office (2017-Present)

In 2017, Katsas joined the White House as a Deputy White House Counsel and Deputy Assistant to the President.  In this role, Katsas serves as “in-house counsel” to the senior staff in the White House.  Additionally, Katsas also has responsibilities with the selection of candidates for executive and judicial positions.

Without the consent of the White House (his client), Katsas is precluded by privilege from discussing much of his work at the White House Counsel’s Office.  Nevertheless, speculation has already been raised about Katsas’ involvement in the firing of FBI Director James Comey, the Administration’s executive orders on healthcare, and the travel ban.[21]

Overall Assessment

Nomination to the D.C. Circuit invites controversy.  In the last twenty years, fifteen nominees have been put forward for the court (including Katsas), only nine of whom were actually confirmed, and only two of whom were confirmed without opposition.[22]  I feel fairly safe in predicting that Katsas will not be joining that latter group.

Setting aside the D.C. Circuit’s uniqueness, Katsas is a nominee who would draw controversy no matter which court he was tapped for.  First, Katsas’ time in the Bush Administration has him on record defending the ban on partial-birth abortion, more secrecy in immigration proceedings and enemy combatant trials, and the suspension of habeas corpus for Guantanamo detainees.  Second, as a private attorney, Katsas has challenged many liberal initiatives, from his notorious challenge to the individual mandate to his lesser-known but more lethal challenge to the recess appointments to the NLRB.  Third, Katsas has advocated conservative legal positions in the media, including testifying in favor of tight pleading standards that restrict access to court,[23] and the constitutionality of the Defense of Marriage Act.[24]  Finally, there is his current role as the attorney for (and as some view it, the enabler to) an Administration embroiled in legal and ethical controversy.  As such, Katsas was never the kind of nominee to sail to confirmation.

Nevertheless, there are many good reasons for even skeptical senators to support Katsas.  First, Katsas’ qualifications for the position are unquestionable.  Second, while Katsas is strongly conservative, there is no indication that he is doctrinaire or unreasonably so.  Third, Katsas does not have the record of intemperate partisan advocacy that other nominees, such as Judge John Bush, have demonstrated.  Finally, at fifty-three, Katsas is one of the older nominees that Trump could have selected for this court.  Rejecting Katsas could prompt the nomination of a much younger conservative such as Kirkland & Ellis partner Kate O’Scannlain or Katsas’ deputy James Burnham.

Considering all these factors together, the confirmation hearing tomorrow will be a good sign of the avenue senators intend to take with Katsas, and of the timeline of Katsas’ ultimate confirmation.


[1] Damon Root, Janice Rogers Brown, America’s Most Libertarian Federal Judge, is Retiring, Reason, July 12, 2017, http://reason.com/blog/2017/07/12/janice-rogers-brown-americas-most-libert.  

[2] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=katsas&order=desc&sort=D (last visited Oct. 15, 2017).

[3] See id.

[4] Id.

[5] See id.

[6] See NFIB v. Sebelius, 567 U.S. 519 (2012).

[7] National Federation of Independent Businesses v. Sebelius, Oyez, https://www.oyez.org/cases/2011/11-393 (last visited Oct 16, 2017).

[8] Jones Day: Suing the Government on ACA and More, Metropolitan Corp. Counsel, Northeast Edition, Sept. 2012, Vol. 20 No. 9 Pg. 13.  

[9] Id. 

[10] See RJR Nabisco, Inc. v. The European Community, 579 US __ (2016).

[11] William McCall, Federal Judge to Consider Oregon Assisted Suicide Law, The Topeka Capital-Journal, Mar. 23, 2002, http://cjonline.com/stories/032302/usw_suicide.shtml#.WeQQ5hOPIWo. See also Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004), aff’d, 546 U.S. 243 (2006).

[12] See Neil Lewis, Threats and Responses: The Detainees; U.S. Says Revealing Names Would Aid Al Qaeda, N.Y. Times, Nov. 19, 2002, A6 P. 19.

[13] See Michael Powell, Appeals Court Weighs Bush’s War Powers; Act of Congress Needed for Iraq Invasion, Suit Says, Wash. Post, Mar. 12, 2003, A14.

[14] See Henri E. Cauvin, Judges Question U.S. Move in Cheney Suit; Panel Criticizes Request for Intervention in Two Groups’ Bid for Task Force Data, Wash. Post, Apr. 18, 2003, A02. See also In re Cheney, 334 F.3d 1096 (D.C. Cir. 2003), vacated, 542 U.S. 367 (2004), on remand, 406 F.3d 723 (D.C. Cir. 2005) (en banc).

[15] FAIR v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004), rev’d, 547 U.S. 47 (2006).

[16] See Planned Parenthood v. Gonzales, 435 F.3d 1163 (9th Cir. 2006), rev’d, 550 U.S. 124 (2007), and Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), rev’d, 550 U.S. 124 (2007).

[17] Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).

[18] Boumediene v. Bush, 553 U.S. 723 (2008).

[19] Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010).

[20] Negusie v. Holder, 555 U.S. 511 (2009).

[21] Josh Gerstein, Court Nominee Faces Scrutiny Over Trump White House Role, Politico, Oct. 16, 2017, http://www.politico.com/story/2017/10/16/katsas-trump-judge-nominee-confirmation-243798.  

[22] Then-Judge John Roberts in 2003 was confirmed via voice vote, and Judge Sri Srinivasan was confirmed 97-0 in 2013.

[23] Kimberly Atkins, Congress Questions Pleading Decisions; Lawmakers, Witnesses Discuss Impact of ‘Iqbal’, ‘Twombly’ Rulings, Lawyers Weekly USA, Oct. 28, 2009.

[24] Katharine Q Seelye and Ethan Bronner, U.S. Appeals Court Turns Back Marriage Act As Unfair to Gays, N.Y. Times, June 1, 2012, A0 P. 1.