[Congressional Record Volume 166, Number 113 (Thursday, June 18, 2020)]
[Senate]
[Pages S3092-S3094]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. DURBIN. Mr. President, we are in the midst of one of the greatest 
public health crises in our Nation's history. Over 2 million Americans 
have been infected by the COVID-19 virus. Over 115,000 Americans have 
died. Sadly, infections are still trending upward in many States. And 
what is the response of the Republican majority in the U.S. Senate to 
this public health crisis? This week, the majority leader, Senator 
McConnell has scheduled a vote on his family friend and former intern, 
Justin Walker, to be a judge on the DC Circuit, the second highest 
court in the land.

[[Page S3093]]

  Colleagues, let's be honest. You cannot say with a straight face that 
Justin Walker, a 38-year-old with no practical courtroom experience and 
a few months' time on the district court bench, is the best person for 
the job of DC Circuit judge. He is not, and we know it. So why is he 
getting this nomination? I believe there are two main reasons: because 
Justin Walker is a protege of Senator McConnell and because he is an 
outspoken critic of the Affordable Care Act.
  Justin Walker has made clear that he is willing to toe the Republican 
party line of hostility to Obamacare. Before he was confirmed as a 
district judge last October in a party-line vote, he called the NFIB 
case that upheld the ACA's constitutionality an ``indefensible 
decision.'' And in March, while he was a sitting judge, he cracked 
jokes about his opposition to the ACA at his ceremonial investiture.
  These comments apparently put him on the fast-track for a promotion 
to the DC Circuit. I find it astonishing that Senate Republicans have 
rubberstamped so many nominees who have written articles or spoken 
publicly about their hostility to the ACA, nominees like John Bush, 
Steven Grasz, James Ho, David Porter, Neomi Rao, Mark Norris, Michael 
Truncale, and Sarah Pitlyk, not to mention Chad Readler, who filed the 
brief for the Trump Justice Department in the Texas v. U.S. case that 
called for striking down the entire ACA, including its protections for 
Americans with preexisting conditions. Chad Readler was nominated to 
the 6th Circuit within a day of filing that brief.
  It is a pattern. And right after the vote on Justin Walker, Senator 
McConnell wants to vote on yet another nominee with a record of 
outspoken hostility to the ACA; 5th Circuit nominee Cory Wilson of 
Mississippi has repeatedly spoken, written, and tweeted criticisms of 
the ACA. In one of Wilson's newspaper columns, he wrote ``for the sake 
of the Constitution, I hope the Court strikes down the law.'' In 
another column, he described the ACA as ``big, intrusive government'' 
and as ``perverse'' and ``illegitimate.'' And he has tweeted negatively 
about the ACA more than 30 times.
  Justin Walker's and Cory Wilson's public statements clearly show that 
they have already made up their minds about the Affordable Care Act's 
merits and its constitutionality. And yet, they have been unwilling to 
recuse themselves from ACA cases that might come before them if they 
are confirmed. This is important because the ACA has been under 
constant attack in the Federal courts. The Republican Party, from 
President Trump on down, has been obsessed with trying to get the ACA 
struck down as unconstitutional. There is a case pending before the 
Supreme Court right now where Republican officeholders and the Trump 
administration are trying to strike down the entire ACA. That would 
strip away health insurance and preexisting condition protections for 
millions of Americans. Even in the middle of a pandemic, the Republican 
Party is not stopping its attack on the Affordable Care Act.
  They failed to overturn the ACA in Congress, of course. But clearly, 
Republicans are determined to attack it through the courts, no matter 
how many Americans might lose their coverage and protections. Make no 
mistake, the nominations of Justin Walker and Cory Wilson are part of 
the Republican assault on the Affordable Care Act. And the American 
people are watching.
  I oppose these nominees.
  Mrs. FEINSTEIN. Mr. President, I rise today in opposition to the 
nomination of Justin Walker to the DC Circuit. There are four main 
reasons for my opposition, and I would like to address each.
  First, Judge Walker does not have the experience we would expect of a 
nominee to the DC Circuit, which is considered the second most powerful 
court in the Nation.
  Judge Walker was confirmed to the Western District of Kentucky on 
October 24, 2019. He has just 7 months of experience as a sitting 
Federal district court Judge.
  Moreover, as Judge Walker disclosed in the questionnaire he submitted 
to the Judiciary Committee, in those 7 months he has presided over no 
bench or jury trials.
  Although appellate judges don't preside over jury selection, 
sentencing, or decisions on the admissibility of evidence, they are 
regularly called upon to examine the decisions of district court judges 
on these and other matters.
  In light of that, Judge Walker's lack of trial experience should 
alone be a bar to his elevation to the circuit.
  Second, I have serious concerns about Judge Walker's views on 
Executive power and agency independence.
  Questions around these issues frequently come before the DC Circuit, 
and so Judge Walker's views are highly relevant to his nomination.
  Judge Walker has argued against the independence of the Federal 
Bureau of Investigation, going so far as to claim that the FBI Director 
should be an ``agent'' of the President.
  These views are troubling in the abstract, but they are even more 
troubling now, with an administration that too often views the 
Department of Justice as a political arm of the Presidency.
  Judge Walker has also argued that Federal agencies have too much 
power when it comes to protecting the environment, consumers, and the 
workplace.
  This is an especially troubling viewpoint at a time when we need 
agencies like the Occupational Safety and Health Administration, 
commonly known as OSHA, to protect the health and safety of American 
workers who have continued working during the COVID-19 pandemic or will 
be returning to their jobs.
  Judge Walker's views on the ability of federal agencies to protect 
Americans are particularly relevant to the DC Circuit, which hears 
critical cases surrounding workplace and environmental safeguards.
  Third, Judge Walker has been an ardent opponent of the Affordable 
Care Act.
  He has called the Supreme Court's decision upholding the ACA 
``indefensible'' and ``catastrophic.'' He praised then-Judge Brett 
Kavanaugh for providing a ``roadmap'' by which the Court could strike 
down the ACA.
  I simply cannot support a nominee who would put at risk the 
healthcare of tens of millions of Americans, including those with 
preexisting conditions who might well lose coverage without the ACA's 
protections.
  Finally, I have concerns that Judge Walker does not have the 
temperament required of a Federal judge.
  In March of this year, when he was formally sworn in to the Western 
District of Kentucky, Judge Walker made a number of overtly political 
remarks.
  He attacked the American Bar Association, stating that ``although we 
celebrate today, we cannot take for granted tomorrow or we will lose 
our courts and our country to critics who call us terrifying and who 
describe us as deplorable.''
  He said that ``in Brett Kavanaugh's America, we will not surrender 
while you wage war on our work or our cause or our hope or our dream.''
  These remarks raise questions as to whether Judge Walker can remain 
impartial and set aside political leanings.
  For all of these reasons, I will vote against Judge Walker's 
nomination, and I urge my colleagues to do the same. Thank you.
  Mr. CRUZ. I yield the floor.
  The PRESIDING OFFICER. All postcloture time has expired.
  The question is, Will the Senate advise and consent to the Walker 
nomination?
  Mr. BARRASSO. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. THUNE. The following Senator is necessarily absent: the Senator 
from Alaska (Mr. Sullivan).
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Manchin), the Senator from Massachusetts (Mr. Markey), the Senator from 
Washington (Mrs. Murray), the Senator from Nevada (Ms. Rosen), the 
Senator from Vermont (Mr. Sanders), and the Senator from Arizona (Ms. 
Sinema) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?

[[Page S3094]]

  The result was announced--yeas 51, nays 42, as follows:

                      [Rollcall Vote No. 123 Ex.]

                                YEAS--51

     Alexander
     Barrasso
     Blackburn
     Blunt
     Boozman
     Braun
     Burr
     Capito
     Cassidy
     Cornyn
     Cotton
     Cramer
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Gardner
     Graham
     Grassley
     Hawley
     Hoeven
     Hyde-Smith
     Inhofe
     Johnson
     Kennedy
     Lankford
     Lee
     Loeffler
     McConnell
     McSally
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Romney
     Rounds
     Rubio
     Sasse
     Scott (FL)
     Scott (SC)
     Shelby
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--42

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Harris
     Hassan
     Heinrich
     Hirono
     Jones
     Kaine
     King
     Klobuchar
     Leahy
     Menendez
     Merkley
     Murphy
     Peters
     Reed
     Schatz
     Schumer
     Shaheen
     Smith
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--7

     Manchin
     Markey
     Murray
     Rosen
     Sanders
     Sinema
     Sullivan
  The nomination was confirmed
  The PRESIDING OFFICER. The majority leader.
  Mr. McCONNELL. I ask unanimous consent that with respect to the 
Walker nomination, the motion to reconsider be considered made and laid 
upon the table and the President be immediately notified of the 
Senate's action.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________