With election in mind, Senate fills final court vacancies with Trump nominees
(Editor's note: This story was corrected on June 18 to accurately account for Justin Walker's higher education.)
This week, the Republican-led U.S. Senate is expected to confirm 38-year-old Judge Justin Walker of Kentucky to a lifetime seat on the D.C. Circuit Court of Appeals. The D.C. Circuit hears lawsuits challenging federal statutes, such as the Affordable Care Act (ACA), and regulations issued by federal agencies.
Walker has benefited from a close relationship with Senate Majority Leader Mitch McConnell, also from Kentucky, who knew Walker's grandfather. Walker became a judge on the U.S. District Court for the Western District of Kentucky less than a year ago. But in that time, he has generated considerable controversy.
Walker drew criticism in March for his decision in favor of a Louisville, Kentucky, church that challenged the city's "strong suggestion" to avoid large gatherings during the COVID-19 pandemic. Walker ordered the city not to enforce the ban when it came to "drive-in church services" — even though the city wasn't planning to do that. Walker claimed the city had "criminalized the communal celebration of Easter." Professor Josh Blackman of the South Texas College of Law, a conservative, criticized Walker for the inflammatory language and suggested that the whole issue could have been cleared up by a phone call with the parties involved.
A 2004 graduate of Duke University in Durham, North Carolina, who earned his law degree at Harvard, Walker was nominated by President Donald Trump last year, months after writing a law review article defending Trump's decision to fire former FBI Director James Comey. In 2017, Walker did 162 media interviews backing Trump Supreme Court nominee Brett Kavanaugh, for whom Walker had clerked.
Several Kentucky law professors who supported Walker's confirmation a year ago changed their minds on his current nomination. They criticized his lack of experience and his decision in the Louisville case. One professor said the ruling was "troubling" and described the tone of Walker's language as "over the top."
McConnell pushed back against criticism of Walker, which he dismissed as a "bottom-of-the-barrel smear." On June 17, the Senate voted 52-46 to advance Walker to a final confirmation vote.
'Weaponizing the bench'
The Senate will also vote soon on a nominee for the 5th U.S. Circuit Court of Appeals based in New Orleans, Cory Wilson. A state judge in Mississippi only since 2019, Wilson has been criticized for statements and tweets that denigrated President Barack Obama, Secretary of State Hillary Clinton, and the ACA. He referred to Obama as "a fit-throwing teenager," a "radical leftist," and "dishonest and intellectually bankrupt." Wilson, who previously served in the Mississippi House, said that he made those statements "before I was ever a judge," a role he described as "very different." Both Walker and Wilson have argued that all or some of the ACA is unconstitutional.
Like 85% of Trump's judicial appointees, Walker and Wilson are white. The president will leave the federal courts less diverse than they were when he took office. Kristine Lucius of the Leadership Conference on Civil and Human Rights said, "Trump is deliberately nominating the least diverse class of judicial nominees that we have seen in modern history."
If Wilson is confirmed, he will join a court that presides over a higher percentage of people of color than any other circuit court. The 5th Circuit hears appeals from Louisiana, Mississippi, and Texas; in recent years, it has heard lawsuits challenging state laws that restrict voting rights, access to abortion, and other constitutional rights.
Trump inherited several vacant seats on the 5th Circuit, after the Republican Senate wouldn't vote on Obama's nominees, and the court has now taken a sharp turn to the right. Last year, it ruled the entire ACA unconstitutional just because Congress eliminated the financial penalty for individuals who don't have health insurance.
Wilson is filling a seat formerly occupied by a Reagan appointee. McConnell and Republican U.S. Sen. Lindsey Graham of South Carolina have urged older GOP-appointed judges to retire now, while Trump and the Republican Senate are still in power. Wilson was actually Trump's second choice for the seat; his first nominee stalled when Republican senators questioned his commitment to conservative ideology.
A longtime member of the conservative Federalist Society, Wilson has a record of defending voter ID laws and mass purges of voter rolls. He has claimed without evidence that voter fraud, such as people voting while using the names of dead people, is a common problem in Mississippi. During his confirmation hearing, he denied that laws restricting access to voting would lead to disenfranchisement.
The NAACP and other civil rights groups called Wilson's nomination "an extreme example of Donald Trump's weaponizing the bench to suppress the vote."
Voter suppression in the courts
Trump outsourced the selection of judges to the Federalist Society and its leader, Leonard Leo, who sits at the center of a web of secret-money groups pushing conservative judges. Leo advised Trump on his list of potential Supreme Court nominees. These groups have run ads promoting Trump's choices, including an ad defending a controversial nominee from criticism by U.S. Sen. John Kennedy, a Louisiana Republican.
After helping put conservative judges in power, Leo recently launched the Honest Elections Project. The group has joined other conservatives in demanding that state officials purge voter registration rolls to combat "voter fraud," a phenomenon that is extremely rare. Recent purges in Florida and Georgia have disproportionately impacted black voters. Leo's group has also filed briefs defending restrictions on voting in Texas, Virginia, and other states, and it has opposed efforts to ease the rules on voting by mail during the COVID-19 pandemic.
A report on the Honest Elections Project by the Guardian noted, "By having a hand in both voting litigation and the judges on the federal bench, this network could create a system where conservative donors have an avenue to both oppose voting rights and appoint judges to back that effort."
Voting rights advocates are warning that this year's election could see unprecedented voter suppression. The hours-long lines to vote in the recent Georgia primary demonstrated that some states are woefully underprepared for voting during a pandemic. In response, former Georgia Democratic gubernatorial candidate and voting rights advocate Stacey Abrams said, "We should absolutely be concerned about voter suppression and its impact on November's election." Abrams called for "robust voter protection operations, voter education, advocacy campaigns and litigation."
For the first time in decades, the Republican Party is now free to employ "poll watchers" to monitor polling places, after the lifting of a consent decree that had been issued in a lawsuit over the 1981 election for New Jersey governor. On Election Day that year, the GOP had sent into communities of color teams of off-duty police who carried weapons and wore arm bands identifying themselves as the "National Ballot Security Task Force."
This year, the GOP is seeking 50,000 volunteers to look out for "voter fraud," and it could again recruit off-duty police officers. The party plans to spend $20 million on the effort.
Voter suppression efforts will likely be challenged in the courts this fall. Until recently, the federal courts have acted to protect black voters from discrimination. These courts ordered an end to racial gerrymandering and blocked some voter suppression laws, including a North Carolina law that the courts found targeted black voters "with almost surgical precision."
But now that Trump's takeover of the federal courts is complete, these voters may be left with state courts as the only recourse for protecting their rights.
Billy is a contributing writer with Facing South who specializes in judicial selection, voting rights, and the courts in North Carolina.