Trump raises the bar in effort to shape US judiciary

America Letter: Appointment of judge with no experience shows importance of issue in election

As coronavirus kept most Americans confined at home this week, the Senate was back in session at the US Capitol. Dismissing the lockdown, Senate majority leader Mitch McConnell summoned the 100-member upper chamber to Washington.

The priority was not coronavirus measures, however, but a series of confirmation hearings.

On Wednesday, 37-year-old Justin Walker appeared before the Senate judiciary committee. The young Kentucky judge has been nominated by president Donald Trump for the US court of appeals for the District of Columbia circuit. The DC court is one of the most powerful in the country. Based in Washington, it hears important cases relating to federal government policy and is seen as a springboard for future supreme court justices.

Walker’s nomination stunned many Democrats.


Prior to his appointment by the Trump administration to a federal district court in Kentucky last October, he had never tried a case. The American Bar Association at the time rated him as "unqualified" for the district court.

What he did have was impeccable academic credentials and political connections.

A former intern for McConnell, he has known the top Senate Republican, a fellow Kentuckian, since he was in high school. Walker clerked for supreme court justice Brett Kavanaugh and his predecessor Anthony Kennedy. During the contentious Kavanaugh confirmation hearings when the nominee was accused of sexual assault, Walker was a vocal defender of Kavanaugh on Fox News.

Kavanaugh and McConnell flew to Louisville, Kentucky to attend Walker's investiture ceremony for his district court appointment in March just as the coronavirus crisis began to shut the country. So too did former White House counsel Don McGahn.

During his brief spell on the bench in Kentucky, Walker has himself made headlines. Last month he allowed a local church to hold a drive-through Easter ceremony in defiance of local lockdown laws, declaring that “an American mayor criminalised the communal celebration of Easter”.

During Wednesday's confirmation hearing, Democrats focused on his lack of courtroom experience. "In his short time on the bench. . . he has not presided over any bench or jury trials. He has written opinions in only 12 total cases," said Californian Democrat Dianne Feinstein. They also noted his previous ideological stances, including his opposition to Obamacare.

Walker is just one of hundreds of judges who have been nominated by Trump and confirmed by the Republican-controlled Senate, since the president took office in 2017.

While most of the attention has focused on the supreme court – two of the nine justices are Trump appointees – the lower courts have also been populated by conservative judges. The Senate has confirmed more than 200 judicial nominees proposed by the president.

Rather than claim any semblance of ideological balance or independence, Trump has seized on his nominees’ conservative credentials as proof that he has delivered on campaign promises.

Speaking as he left Washington for Arizona this week – a potential swing-state in November’s election – Trump boasted of the “beautiful, brand new, conservative, wonderful judges” he has appointed.

Conservative leaning

The steady confirmation of conservative-leaning judges at all judicial levels has been the most tangible outcome of the Trump-McConnell relationship. Though the two men are temperamentally different and the Kentucky Republican shared much of his party’s initial scepticism about Trump, they have worked together for mutually-beneficial results.

For Trump, securing conservative appointments to the bench is vital to his re-election campaign. His team knows that many traditional Republicans held their noses and voted for Trump because of his pledge to appoint conservative judges who would implement anti-abortion rulings.

McConnell for his part sees a conservative-leaning legal system as his defining legacy. At 78 he is facing an election battle for his own seat in November. It is also possible that Republicans will lose their majority in the Senate. As a result, the next six months will be crucial in securing as many judicial appointments as possible.

The hospitalisation this week of Ruth Bader Ginsburg is a reminder of what is at stake in November's election. The 87-year-old is one of four liberal justices on the supreme court, and has suffered several health scares in recent months.

Should Trump secure the opportunity to appoint a third supreme court justice – an exceedingly likely prospect if he secures a second term – the conservative tilt of the court would be assured possibly for decades to come. For many Democrats that is the primary reason why Trump should be voted out of office in November.