It was less than a month ago that a power-hungry mayor in Louisville, Kentucky tried to ban a drive-in church service on Easter Sunday that would have complied with all of the social distancing guidelines provided by the state and federal government.
To leave no room for doubt, Louisville Mayor Greg Fischer even threatened to come down on those who rebelled his dystopian rule banning safe worship with arrest and criminal penalties under the guise of trying “to save lives,” never mind the First Amendment.
Federal District Judge Justin Walker however, blocked the mayor’s power-grab and reinstated the public’s right to worship as planned practicing safe procedures.
“The Mayor’s decision is stunning. And it is, ‘beyond all reason,’ unconstitutional,” Walker wrote in his decision.
The episode highlights the growing importance of creating a federal judiciary that consists of arbiters committed to upholding constitutional rights the current crisis has reminded are remarkably fragile, making the confirmation of such judges ever more urgent.
On Wednesday, Walker testified before the Senate Judiciary Committee for a seat on the powerful U.S. Court of Appeals for the District of Columbia.
Walker’s testimony went about as expected. Democrats resentful over Senate Majority Leader Mitch McConnell’s success with confirming more than 200 judges went after Walker’s youth as a 37-year-old district level judge in Kentucky despite receiving a “well qualified” rating from the American Bar Association (ABA) which Democrats have characterized as the “gold standard” of deeming judicial approval. To remain at odds with Republicans however, Democrats have had no trouble voting to confirm those not afforded the ABA’s blessing to the bench which has faced issues of its own impartiality.
Walker, a Harvard Law School graduate who clerked for then-District Circuit Court Judge Brett Kavanaugh and later Justice Anthony Kennedy was also attacked for past criticism of rulings upholding the 2010 Affordable Care Act popularly known as Obamacare.
“What I think is indefensible is that we are here in the midst of a public health crisis considering the nomination of someone who would dismantle a health care system that is saving lives right now,” charged Democratic Sen. Richard Blumenthal of Connecticut.
Blumenthal proceeded to share a heart-wrenching story of a young boy who suffers from MS, accusing Walker of desiring to strip away the child’s health care.
Walker offered sympathy for the young boy while making clear it is no role for a judge to determine what was good policy but instead is to decide whether such policy is valid under the law.
“I’ve never spoken against the Affordable Care Act as a matter of policy,” Walker said, arguing that role rests with Congress.
Other Democratic senators reiterated the same criticism focusing on the outcomes of Walker’s judicial philosophy adhering to an originalist approach to the constitution rather than the judge’s character and qualifications.
Republicans on the other hand, praised Walker’s recent decision to uphold religious liberty under siege in Kentucky when the Louisville mayor attempted to keep Christians from worshipping responsibly on Easter.
“In Judge Walker’s short time as a district judge, he has shown an unwavering fidelity to the constitution,” Kentucky Sen. Rand Paul said in an opening statement supporting Walker. “The mayor of our largest city banned churches from holding Easter services, including a drive-thru service where the worshipers would stay in their car… Judge Walker saw such a clear violation of the First Amendment that he issued a rare Saturday order blocking the city from criminalizing Easter.”
Meanwhile, other judges who sailed through the Judiciary Committee months ago remain in waiting.
One of those nominees include Stephen Vaden, the current general counsel for the U.S. Department of Agriculture. Vaden’s nomination to the Court of International Trade, where a fifth of the seats remain vacant, passed the committee more than four months earlier and is still waiting on a full Senate vote.
Though Democrats are complaining that the Senate divert attention from passing trillions more in coronavirus stimulus despite the lower chamber remaining absent from Washington this week, McConnell would be wise to move on his pledge to “leave no vacancy behind,” as elections draw nearer seven months away and Republicans maintain an upper chamber majority with control the White House.
“The pandemic will not prevent us from achieving that goal,” McConnell promised on the “Hugh Hewitt Show” just last month as the coronavirus crisis reached full bloom.
McConnell’s quest to fill the federal judiciary with judges has become a popular rallying cry for Republican senators often touting the work to their constituents.
“As a member of the Senate Judiciary Committee, I am committed to keeping this streak going because Tennesseans want more judges who will faithfully interpret the law instead of legislating from the bench,” Tennessee Republican Sen. Marsha Blackburn celebrated in one of last year’s “Blackburn Reports.” “I appreciate that Senator Majority Leader Mitch McConnell has taken the necessary steps to reform outdated Senate rules and promptly confirm qualified judicial nominees.”
Vacancies remain however, and time is running out. With the House gone, more than $3.5 trillion in aid already passed and elections coming up, the moment has presented itself to cement sweeping change to the federal judiciary with an impact that will last generations.
Last month’s case involving an Easter-Grinch mayor criminalizing the free exercise of religion made the stakes all too clear.