Graham’s first task after COVID-19 recess: Confirm Mitch McConnell’s handpicked judge
On Wednesday morning, in one of the largest congressional auditoriums typically reserved for high-profile hearings and large gatherings, U.S. Sen. Lindsey Graham removed his Palmetto Tree-patterned face mask and looked out over at the sparsely-attended room to associates seated at such a far distance he quipped he needed a pair of glasses to see them.
“I think I see Rand back there somewhere,” Graham, a South Carolina Republican, said of U.S. Sen. Rand Paul, R-Ky.
The chairman of the Senate Judiciary Committee, Graham was presiding over his first hearing in what he described as “the reality we all face as a nation” as Congress tries to get back to work after an extended absence in the midst of a global health crisis.
Lawmakers wore face masks until they were settled into their seats, spaced at least six feat apart. Each station was outfitted with a pump-top bottle of hand sanitizer, a canister of sanitizing solution and a stack of wipes. Many committee members who wanted to observe further social distancing protocol were patched in to participate in the hearing via video conference.
Graham’s hearing — to confirm a judicial nominee appointed by President Donald Trump and handpicked by Senate Majority Leader Mitch McConnell — would have been contentious under normal circumstances.
When Justin Walker, the 37-year-old nominee for a seat on the U.S. Court of Appeals for the D.C. Circuit, was confirmed for another judgeship last October — to serve as a U.S. District Court Judge for the Western District of Kentucky — it was along party lines.
At that time, Democrats chafed at Walker’s “not qualified” rating from the American Bar Association, which cited the young attorney’s lack of experience, and in general Democrats have been loath to confirm Trump’s nominees to federal lifetime judicial appointments.
Now, boasting an upgraded “well qualified” ABA rating, Walker is up for a seat on one of the most powerful courts in the federal system. And the decision to convene his confirmation hearing as the COVID-19 pandemic rages on — and before the nation’s capital has announced plans to relax stay-at-home orders — made for an especially partisan dynamic Wednesday.
Graham stressed he was open to having the Senate Judiciary Committee look at coronavirus-related matters, for instance the pandemic’s spread through prisons and immigration detention centers.
He has already scheduled a hearing for next week on concerns about businesses being vulnerable to frivolous lawsuits as the country reopens, with liability protection legislation in light of the pandemic a major priority of McConnell’s.
“I feel that the committee has a lot to do related to the coronavirus, and we will,” said Graham, “but we also have other things to do necessary to the nation, like filling judiciary vacancies. We are getting comments throughout the country about the vacancies and how they are impacting the ability to deliver justice in various states.”
That explanation did little to assuage Democrats, who oppose Walker, a McConnell protege, on a whole range of issues.
They have concerns about Walker’s opposition to the Affordable Care Act, with U.S. Sen. Dianne Feinstein of California, the top Democrat on the Judiciary Committee, asking “why, in the middle of the pandemic, should we support the nominee who would take away healthcare for millions of Americans including those with preexisting conditions?”
They are bothered by Walker’s defense of Brett Kavanaugh during his 2018 Supreme Court confirmation proceedings, where Kavanaugh was battling accusations of sexual misconduct. Walker clerked for Kavanaugh when he was a D.C. Circuit judge, as well as for now retired Supreme Court Justice Anthony Kennedy, who Kavanaugh succeeded.
And Democrats are also scrutinizing Walker’s recent decision to block efforts by the mayor of Louisville, Ky., to prohibit drive-in church services on Easter Sunday as a means to prevent the further spread of COVID-19, worried it shows Walker is more interested in pandering to the religious right than ensuring public safety.
Paul, who introduced Walker before the committee, argued the ruling “demonstrates (Walker’s) fidelity to our Constitution, even when it is hard, and even in times of crisis.”
McConnell, in a Senate floor speech Wednesday, noted how “in the span of just a couple of weeks, almost simultaneously, Judge Walker has won praise from religious freedom advocates nationwide and the approval of the ABA which Democrats call ‘the gold standard.’
“This illustrates the kind of impressive individual the committee is considering,” he said.
‘Moving along’
When not questioning Walker directly about his credentials and qualifications, lawmakers traded barbs about what constituted legislative business worthy of returning to Capitol Hill during a global health crisis.
U.S. Sen. Richard Durbin, D-Ill., said that when he heard lawmakers would be called back to Washington, he had hoped the agenda would focus on the pandemic.
“Instead,” Durbin said, “we are considering the nomination of a 37-year-old family friend of Sen. McConnell’s ... After his six months career on the Kentucky district court, he is obviously, in the eyes of Sen. McConnell, worthy of a promotion to the second highest court in the land.”
Durbin also suggested “this is the second time McConnell has prioritized this judge over the coronavirus,” noting that McConnell recessed the Senate for a long weekend in March with Congress still negotiating a pandemic relief package while he attended Walker’s investiture ceremony in Louisville.
U.S. Sen. Patrick Leahy, D-Va., appearing via video conferencing from his home, also questioned why the Senate Judiciary Committee was considering a judicial nominee for a vacancy that won’t take place until September.
“I’ve had a difficult time explaining to the people of New Jersey I was leaving my state in crisis to do what? Have a judiciary hearing on a person that’s not up for four months,” said U.S. Sen. Cory Booker, D-N.J.
Other Republican committee members were dismissive of Democrats’ complaints.
“I believe that leadership absolutely is key here and we are not asking our constituents to do something that we ourselves are not willing to do,” said U.S. Sen. Joni Ernst, R-Ill.
“Heaven forbid the United States Congress show up to do our job,” agreed U.S. Sen. John Cornyn, R-Texas. “Advice and consent on nominations to our courts is one of the most important responsibilities of the Senate.”
In an interview with The State following the hearing, Graham — now speaking through his homemade mask he said was sewn by the wife of a staffer — defended the decision to consider Walker’s nomination and said there would be more judicial confirmation hearings to come.
He said he wasn’t concerned about optics.
“Not at all,” said Graham, adding the complaints were “coming from people who don’t want to confirm conservative judges. If they were in charge, and there was a Democratic president, they would be. So we’ll just keep moving along.”
This story was originally published May 6, 2020 at 2:39 PM with the headline "Graham’s first task after COVID-19 recess: Confirm Mitch McConnell’s handpicked judge."
