06.17.20

Statement On The Nominations Of Justin Walker To The D.C. Circuit And Cory Wilson To The Fifth Circuit

This morning the Senate narrowly invoked cloture on the nomination of Justin Walker to the D.C. Circuit.  Within a week the Senate is expected to confirm by the thinnest of margins both Judge Walker and a separate nominee, Cory Wilson to the Fifth Circuit, filling the final two available seats on our circuit courts.  This will complete Leader McConnell’s rush to pack our appellate courts with President Trump’s nominees.

It is fitting that both Judge Walker and Judge Wilson are partisan ideologues who have given no indication that they will leave their politics outside the courtroom.  This has become par for the course under this President — choosing nominees not for their judicial qualifications and in spite of any political leanings, but because of those partisan leanings.  Extreme partisanship has become a prerequisite, not a disqualifier. 

While my Republican friends may consider these confirmations a great achievement, I fear that the damage left in the wake of their effort – to our courts, to the Senate, and to the country – will remain with us for years to come.

First let us consider the backdrop upon which we consider these nominees. We are in the throes of a global pandemic that has taken almost 120,000 American lives, plunged our economy into a deep recession, and deprived nearly 45 million Americans of their jobs. And yet, we are not here today considering legislation to further assist Americans struggling during this pandemic. Indeed we have done nothing to respond to COVID-19 for months even though the House passed $3 trillion in further assistance last month.

And the Senate today is not considering legislation to address the plagues of racial and social inequality, despite the fact that millions of Americans of all backgrounds, ages, and creeds have flooded our streets and squares with protests in the wake of the murder of George Floyd.

Instead, the Senate is busy processing and confirming an endless stream of partisan ideologues like Justin Walker and Cory Wilson to our federal courts. I should note that Judge Walker, a protégé of the Leader, is nominated to a seat that isn’t even vacant until September.

It would be one thing if the Senate were coming together across party lines to confirm mainstream nominees.  But nothing about Judge Walker and Judge Wilson is mainstream.  

Judge Walker is not shy about his overt partisanship.  He is openly hostile to the Affordable Care Act, which has provided a critical lifeline to millions of Americans during this pandemic.  He has dangerously suggested that the FBI Director – whom we provide with a 10 year term to avoid politicization – “must think of himself as an agent of the President.”  One wonders why President Trump is interested in a nominee like him.  Even if we ignore his hyper-partisan writings and countless cable news appearances before he became a district court judge just last fall, he has already shown us that he does not leave politics at the door when putting on his robes.  Even his judicial investiture ceremony could have been a lead-in for a Trump campaign rally, where he lamented that his legal principles have not yet prevailed and feared losing “our courts and our country” to his critics.  

These may be the words of Judge Walker, but they are not the words of any other judge I have ever known.  He wears his partisanship as a badge of honor, knowing that it will only appeal to a President who knows nothing of the role of the federal judiciary and, sadly, knowing it will not deter this Senate from confirming him.

Judge Cory Wilson is no better. He has called the Affordable Care Act “perverse” and “illegitimate.”  I wonder if Americans receiving life-saving care though the ACA would call the law “perverse.”  He has attacked President Obama in ugly, personal terms, berating him as a “fit throwing teenager” and “shrill, dishonest, and intellectually bankrupt.”  Such baseless accusations were laughable when he made them; they are beyond parody today.  And Judge Wilson has a long record undermining minority voting rights and dismissing the scourge of voter suppression – which reared its head yet again last week during primary elections – as “phony.”

What message do these nominees send to the country in this moment? Republicans are fast-tracking nominees who are eager to overturn the Affordable Care Act in the midst of a public health pandemic. They are fast-tracking nominees who are dismissive of racial injustices in the midst of a national reckoning on racial injustices.

The Senate’s constitutional duty to provide advice and consent to a President’s nominees used to mean something. But under this President, that constitutional duty has meant little more than serving as a mindless conveyer belt to rubberstamp nominees – however unqualified, however extreme, and however inappropriate at the moment. That greatly diminishes our standing as a co-equal branch of government.

Worse is the damage we are inflicting upon our courts.  The Senate has now reshaped our federal courts — especially our appellate courts — to resemble an extreme, partisan arm of the Republican Party. For generations, Americans have valued our judiciary for its independence. A place where all Americans — of any political party, background, race, or belief — believed they could obtain fair and impartial justice.  That is changing everyday under President Trump.

I continue to hope that the Senate can rediscover its better angels.  I hope that we can again reassert ourselves as the crucible in which the great issues of the day are debated heatedly but resolved amicably, across party lines.  I hope that one day the Senate again serve as the conscience of the nation, as it has during so many moments of upheaval and uncertainty in our history.  And I hope that one day soon the Senate will again demand that a president’s judicial nominees are deserving of lifetime appointments to our federal courts, possessing the qualifications and temperament that until now were rarely in question.

Let’s get back to the being the United States Senate. We owe it ourselves. We owe it to the Constitution. And, most of all, we owe it to the American people. 

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