Trump's pick for federal court under fire for calling Obamacare ruling 'indefensible'

A federal judge nominated to the nation’s second-most powerful court said on Wednesday that he was writing as an academic and commentator when he criticized as “indefensible” a supreme court ruling upholding the Affordable Care Act.

Justin Walker, a 37-year-old protege of the Senate majority leader, Mitch McConnell, and the supreme court Justice Brett Kavanaugh, said he would have an open mind on the Obama-era health care law if it came before him as a district or appeals court judge.

At a hearing on his nomination by Donald Trump to a seat on the US court of appeals for the District of Columbia circuit, Walker declined a request by Senate Democrats to recuse himself on matters related to the healthcare law if he is confirmed.

Walker said he was “an academic and a citizen engaged in the public sphere” when he wrote a 2018 article calling Chief Justice John Roberts’ opinion upholding the healthcare law, known as Obamacare, “indefensible” and “catastrophic”. Walker said he would be bound by the ruling as precedent and would consider any challenge to it with an open mind.

Democrats say Walker’s confirmation could threaten the health of millions of Americans protected by the law, which the Trump administration is challenging in court.

“After 162 TV appearances and all you’ve written [on the healthcare law], it’s painful to hear you say you have an open mind,” Senator Dick Durbin told Walker.

He and other Democrats complained that McConnell, the Kentucky Republican who leads the Senate, had called the chamber back into session to consider Walker‘s nomination, despite a stay-at-home order in Washington amid the coronavirus crisis. The seat Walker would take will not be vacant until September.

“It’s indefensible that we’re here to confirm someone who would dismantle the healthcare law that is saving millions of lives,” said Senator Richard Blumenthal, a Democrat from Connecticut.

Blumenthal and Durbin were among the few Democrats who attended the hearing in person. Most were connected to the meeting through a video link.

Walker also was asked about comments he made during a speech in March, celebrating his recent confirmation as a judge, in which he lavished praise on Kavanaugh, who was confirmed to the supreme court in 2018 after a bitter partisan fight over allegations of sexual assault and other claims. Walker clerked for Kavanaugh when he was on the appeals court to which Walker is nominated.

Walker compared Kavanaugh to St Paul, “persecuted but not abandoned”, and said: “In Kavanaugh’s America, we will not surrender while you wage war on our work, or our cause, or our hope, or our dream.” The speech, in Louisville, Kentucky, was attended by McConnell, Kavanaugh and other conservative luminaries.

“What war is Justice Kavanaugh waging?” asked Senator Sheldon Whitehouse, a Rhode Island Democrat.

Walker said he had been describing the kind of judge Kavanaugh was, adding that he would defend Kavanaugh and the former supreme court justice Anthony Kennedy, another mentor, “until the cows come home”.

In his speech, Walker referred to his values as ones progressives might call “deplorable”, a reference to Hillary Clinton’s criticism of Trump’s supporters.

“We are winning, but we have not won,” Walker said.

Walker drew a “Not Qualified” rating from the American Bar Association when Trump nominated him last year to be a federal judge in Kentucky. The group changed its rating this week, calling him “Well Qualified” to serve on the appeals court.

A letter from the group cited Walker’s experience as a clerk to Kavanaugh and Kennedy and his six months as a federal trial judge. Walker, a graduate of Duke University and Harvard Law School, was confirmed as a judge last year. He previously was a lawyer in Louisville and Washington.

McConnell said Wednesday that his protege and family friend “possesses a generational legal mind, a kind heart and total judicial impartiality”.

Schumer criticizes Walker’s experience

Liberal groups were incensed at Walker‘s nomination for a quick promotion to the nation’s second-highest court. More than 200 groups, including the Leadership Conference on Civil and Human Rights, the NAACP and the National Council on Jewish Women oppose Walker’s nomination, citing his record against expanding access to healthcare and against safeguards for the environment, consumers and the workplace.

The Senate Democratic leader, Chuck Schumer, said Walker “has more experience as a cable news commentator than he does trying cases in court”.

Walker’s qualifications “pale in comparison to those of previous nominees to the DC circuit” by presidents of both parties, Schumer said. “Nominees by Democratic presidents and Republican presidents all were deeply steeped in the law, just about every one. What Leader McConnell is doing to the courts is nothing short of disgraceful.”