The Senate Judiciary Committee convened its first-ever COVID-19 era hearing Wednesday (May 6), and it was a contentious one.
The subject of the hearing was not actually COVID-19-related, a point unhappy Democrats made repeatedly, but the vetting of President Trump's nominee, conservative Kentucky District Court Judge Justin Walker, to fill the Supreme Court Justice Brett Kavanaugh's vacant seat on the U.S. Court of Appeals for the D.C. Circuit.
The D.C. appeals court is the court of principal jurisdiction for challenges to FCC decisions.
Walker is a former clerk for Kavanaugh when he was on the D.C. court and was an intern for Sen. Majority Leader Mitch McConnell.
He is currently a judge on the U.S. District Court for the Western District of Kentucky. Before that, he was a professor at the Brandeis School of Law (University of Louisville).
Sen. Lindsey Graham (R-S.C.) counted down to the hearing's start, awaiting teleconference participants, as the online audience saw legislators, some newly bearded, separated by far more than six feet, including those participating by video conference.
For his part, Graham said he thought Walker was well qualified. Given that Republicans control the Senate, Walker is likely to make it to the bench, as he did to the district court last year after a Senate Judiciary confirmation hearing in which he received no Democratic votes.
Democrats suggested that Walker, at 37 and with only six months as a district judge, was too inexperienced to get a seat on the second most important court in the land, one whose decisions set national precedence--and from which a number of judges in addition to Brett Kavanaugh have been tapped for the Supreme Court.
Sen. Diane Feinstein (D-Calif.) signaled she thought Walker was unworthy of a lifetime appointment given his dearth of bench experience. Sen. Dick Durbin (D-Ill.) said that if they were going to be summoned back from shelter-in-place, it should have been to deal with the current national emergency, say, dealing with thousands of healthcare workers with uncertain immigration status, or how the election is going to be run, or getting more protective gear for first responders.
Durbin said that if he asked Americans what the highest priority of the committee should be, it would not be this nominee, though he said he was sure it was the priority of Sen. McConnell. Durbin said he had still come, perhaps at some personal risk to himself.
Sen Mike Lee (R-Utah) said it was acceptable, appropriate and necessary that the Senate return to the Capitol. He said if doctors and nurses and grocery store workers and truck drivers could be working 24/7, lawmakers could return from a six-week recess. "You can't pretend to legislate when Congress is out of session," he says.
Sen. Patrick Leahy (D-Vt.) was the first to weigh in via videoconference--the audio was a bit cavernous. He echoed the concern that a judicial nomination was on the top of the committee's list during a pandemic.
Sen. John Cornyn (R-Texas), who pointed out, in response to Feinstein's concerns about appellate inexperience, that there were numerous judges, including on Supreme Court, that had an academic, rather than appellate history. He said he thought that given the importance of judges, it was not inappropriate to start their return work there, that they could deal with those other important issues as well, and that they could "walk and chew gum" at the same time.
Walker, who clerked for Kavanaugh on the D.C. circuit, said he was unabashed in his defense of that judge's view of the law, which meant the separation of powers, the limited role of judges and their fidelity to text. "It is my job to go where the law leads," he said, saying he was an "unabashed originalist."
Walker declined to get too deeply into the issue of Chevron deference and whether courts had become too deferential to agency decisions. The Chevron doctrine is the Supreme Court precedent that courts give added weight to an agency's subject matter expertise. But he did signal that he would follow the law, even if it mean ruling against "great policy."
Walker was asked when a judicial branch should defer to the executive branch--so-called Chevron deference. He said if a statute is clear, a regulation is valid or invalid. But if it is ambiguous, a judge considers whether an agencies interpretation is reasonable, if so it is upheld, if not, a regulation is invalid.
Walker said it was not for him to critique binding precedents of the Supreme Court. It is still absolutely good law, he said. As an academic, before he became a judge, he said, he predicted where the Supreme Court might go, including not applying Chevron in some cases, but as a sitting judge now, and hopefully on the D.C. appeals court, he was bound by Chevron.
Sen. Amy Klobuchar (D-Minn.) also weighed in remotely, and also said she thought they should he dealing with some other issue, like perhaps COVID-19 in prison and its impact on prisoners and guards. But she did thank Graham for allowing for remote participation.
She brought up the Chevron doctrine and asked if Walker thought a judge is better positioned than an agency to weigh in on complicated issues. He said he was not running away from his scholarship as an academic and that there was a rigor of analysis that showed how he was trying to look at the facts, case by case.
Klobuchar said that a third of the D.C. circuits are about agency appeals and that his academic writing did suggest how he would approach the Chevron doctrine. Klobuchar said he midnight have been making an academic argument, but she feared he would let judicial opinions trump agency expertise.
Walker said that in terms of judges reviewing agency actions, it is never the role of the judge to second-guess a political policy decision, especially when it comes from agency expertise. But he said it is always a judge's role to say what the law is, and when an agency has issued a regulation that is not supported by statute, to find that it is invalid, even if that regulation was great policy."
Sen. Sheldon Whitehouse (D-R.I.) also weighed in remotely, pressing Walker on who coordinated his many TV and radio appearances (Durbin said there were some 162 appearances) in defense of Kavanaugh during his Supreme Court nomination gauntlet.
Walker said he was asked by, and advised by, an old friend, Matt Lattimer, to make statements about Kavanaugh on cable news outlets.
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