Judge Justin Walker’s ruling in the church-vs.-state showdown over stay-at-home orders is expected to be a key issue Tuesday when the Senate considers his nomination to the nation’s premier federal appellate court.
Last month, President Trump nominated Judge Walker who, at 37 years old, is the youngest nominee to the U.S. Circuit Court of Appeals for the District of Columbia since the 1980s. Rather than shrink away from contentious decisions, as is the norm for judges on the verge of promotion, Judge Walker wrote an opinion that prevented the mayor Louisville, Kentucky, shutting down Easter church services over social distancing guidelines.
“On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” Judge Walker wrote in the On Fire Christian Center v. Greg Fischer ruling. “That sentence is one that this court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship — and even though it’s Easter. The mayor’s decision is stunning. And it is, ’beyond all reason,’ unconstitutional.”
The ruling fired up religious liberty advocates and political conservatives, who previously rallied behind Judge Walker when his age became a flashpoint for opponents of his nomination to the federal bench in Kentucky.
The American Bar Association labeled him as “not qualified” in 2019 because he practiced law for fewer than 12 years. He was confirmed by a 50-41 Senate vote to the U.S. District Court for the Western District of Kentucky in October 2019. He has been a federal judge for less than one year.
Judge Walker has shown he is ready and able to protect Americans from government overreach because of the On Fire ruling, said Mike Davis, former Senate Judiciary Committee counsel on nominations and president of the Article III Project that advocates for Mr. Trump’s judicial picks.
“Judge Walker proved he’s a great match for the D.C. Circuit, where he can take the fight to all federal government agencies that overstep their authority,” Mr. Davis said.
The On Fire ruling is expected to rankle Senate Democrats who have complained that the chamber should not consider any judicial nominee during the coronavirus outbreak.
Last week, the Senate Judiciary Committee’s 10 Democrats wrote to the committee’s chairman, Sen. Lindsey Graham, requesting a delay of Wednesday’s scheduled hearing on the Walker nomination.
“Now is not the time to process routine judicial nominations,” the Democrats wrote to the South Carolina Republican.
The hearing is set to proceed as planned, and liberal advocates have latched onto the On Fire case for ammunition to use against Judge Walker.
The Leadership Conference on Civil and Human Rights wrote a letter to individual senators on behalf of a coalition of 200 liberal groups that labeled Judge Walker’s On Fire ruling “a decision in which he sought to decide issues not before the court but that synced up with his personal ideological agenda.”
“Indeed, by manufacturing facts to comport with his ideological agenda, and not permitting the defendant to provide evidence, Judge Walker demonstrated a troubling degree of bad judgment and judicial activism,” the letter said.
Judge Walker’s ability to defend his On Fire decision could determine whether his nomination is too hot to handle for the Senate.
Heritage Foundation constitutional scholar John Malcolm said he thought the opinion was “excellent” and the judge would — and should — be confirmed.
“Although he is certainly young, he has a distinguished career — prestigious clerkships with Justice [then-Judge] Brett Kavanaugh and with Justice [Anthony] Kennedy and a stint in private practice at a well-respected firm,” Mr. Malcolm said in an email. “As well, he has taught separation of powers and administrative law, among other courses, for several years, which is the bread and butter of the kind of issues that the D.C. Circuit faces.”
• Ryan Lovelace can be reached at rlovelace@washingtontimes.com.
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