Justin Walker's Law School Colleagues Backed His District Court Nomination. Some Don't Want Him on the DC Circuit
Law school faculty at the University of Louisville who initially backed Walker's district court nomination say they're concerned the judge didn't gain enough experience at the trial court before being nominated to the U.S. Court of Appeals for the D.C. Circuit.
June 10, 2020 at 01:25 PM
11 minute read
The original version of this story was published on National Law Journal
When Justin Walker was nominated for a judgeship on the Western District of Kentucky last year, 16 faculty members and staff who taught alongside Walker at the University of Louisville's Brandeis School of Law signed a letter in support of their colleague.
"Although we are a diverse group with varying perspectives on the law, we share in common the view that Justin will be an exemplary judge who will serve the Western District and the federal bench extraordinarily well," reads the letter, addressed to top senators on the Judiciary Committee.
The faculty praised Walker's intellect, work ethic and temperament. "While there is no doubt that some of us will disagree with some of the decisions he renders in the years to come if he is confirmed (and some of us may take the opportunity to express that disagreement, as law professors are wont to do), there is also no doubt that the respect we have for Justin today will not change," the letter reads.
But when it was announced earlier this year that Walker would be considered for a seat on the U.S. Court of Appeals for the D.C. Circuit, a similar letter was not submitted to the Judiciary Committee. And at least five of those who signed the original letter said they do not fully support Walker for the circuit, often referred to as the second-most influential court in the country.
"I just don't think that Justin's time that he's accrued on the district court is sufficient for him to be in a position I think appellate judges ought to be in," said Leslie W. Abramson, who teaches civil and criminal procedure at the school. "Frequently, you can tell whether an appellate judge has been a trial judge because they're capable of exhibiting empathy or frustration with the judges whose opinions or decisions they're reviewing. They just wouldn't have had the benefit of enough knowledge to either be frustrated or whatever attitude they take."
Multiple signatories for the first letter said they were not aware of a second one being circulated for Walker's circuit court nomination. Only two of the professors who signed the original letter submitted their own letters to the committee recommending the nominee. A third professor who had not signed the first letter also sent the committee an individual recommendation for Walker, according to documents shared with The National Law Journal.
The Senate Judiciary Committee last week voted along party lines to advance Walker to the full Senate, where he is expected to be confirmed. A DOJ spokesperson said in a statement Walker's "nomination to the D.C. Circuit enjoys broad support, including from the community at the Brandeis School of Law, as shown by letters of support from his former colleagues there, his former research assistants, and over 100 of his former students."
"Further, Judge Walker was rated 'well qualified' to serve as a judge on the D.C. Circuit by the American Bar Association after it assessed his professional qualifications, including integrity, professional competence, and judicial temperament. The Department of Justice looks forward to his confirmation," the spokesperson said.
The Senate confirmed Walker, who clerked for then-Judge Brett Kavanaugh on the D.C. Circuit, to the district court seat in October 2019. President Donald Trump announced he would tap Walker for the D.C. federal appeals court seat in April.
In interviews, some faculty members acknowledged that Walker lacked trial experience when he was nominated for the district court, but signed the letter because they believed Walker was otherwise a good candidate and could learn from being a trial judge.
Sam Marcosson, another law professor at Brandeis, said a local supporter of Walker's reached out to him about drafting the original letter for the district court nomination. Marcosson said he considers Walker to be a friend despite disagreeing on some things ideologically, and that he drafted and circulated the letter before it was submitted in July 2019.
"He's always been a colleague that I value and a friend, someone who I find has been open minded and reasonable and thoughtful in discussions and I thought it would be an excellent addition to the trial bench here in Louisville," Marcosson said. "I also thought that it would be good for the school to have one of our former faculty become a federal judge here."
Marcosson said he wasn't asked to sign another letter for Walker's appeals court nomination earlier his year. And he said he's less convinced Walker is ready for the D.C. Circuit. Marcosson said he clerked for a judge on the Second Circuit who had previously served in the Eastern District of New York, and saw how that amount of experience helped the judge.
"The timing struck me as not ideal. If this had come a number of years from now, I would have felt much more comfortable with it," Marcosson said of Walker's nomination. "Even though I would probably disagree with a lot of decisions that he might write, that wouldn't trouble me. What does trouble me is he hasn't had the opportunity to gain that perspective."
The law professor also pointed to a recent opinion by Walker granting a restraining order to a church to hold drive-in services for Easter Sunday, which elicited criticism from both conservatives and liberals. Marcosson said he found the opinion "troubling" because it reached unnecessary legal conclusions and had a "tenor and a tone that I thought was over the top."
"That's the kind of opinion that I think if he had been on the district court lot for a longer period of time and had the opportunity to settle into that job that he might reach the same conclusions, but he would write that opinion in a very different way," Marcosson added.
Gabe Roth, the executive director of the court transparency group Fix the Court, which first obtained and shared the Brandeis faculty letters of support, said he understands why some faculty are not supporting Walker's appeals court nomination.
"We've gotten to this weird place in the judicial confirmation process where people interpret not immediately promoting a nominee as actively punishing them. That's not the case," Roth said. "With no vacancy until September, and amid an ongoing pandemic and an unprecedented movement for racial justice, Walker should gain more experience on the district court for now, the Senate should conduct a more thorough vetting to answer open questions about his finances and classroom etiquette, and we should revisit this in the fall."
Kurt Metzmeier, the associate director of the school's law library, said he signed the original letter because he found Walker's writings to be interesting and thoughtful, even if he didn't always agree with them. "Justin had a good personality, a very even personality, a judicial temperament that I thought would be appropriate for a district court judge, which is primarily a trial judge," he said.
Metzmeier said he's now concerned about the speed of Walker's ascension to the appeals court, adding he may not have signed the original letter if he knew the judge would be elevated to such an influential court so quickly.
Other faculty members have come forward to back Walker's D.C. Circuit nomination. At least three professors submitted individual letters of recommendation to the Senate Judiciary Committee for their former colleague. Colin Crawford, the dean of the law school who also signed the original letter, said in an email that friends of Walker "sought a letter of support from me and I delivered one to them."
Russell Weaver is one of the professors who signed both the original letter of support and submitted his own. In his more recent solo letter, Weaver said he was writing to the senators to "enthusiastically recommend his confirmation."
"In these contentious times, when so many wish to politicize virtually everything, Judge Walker is refreshingly fair-minded and non-political," the letter reads. "He is the kind of judge who can be expected to objectively listen to both sides of a legal dispute and render a fair and impartial decision that adheres to precedent. He approaches every case with an open mind and listens carefully."
In an interview, Weaver said he wrote the letter after not hearing of another joint letter for Walker. He pointed to the pandemic, which shut down the campus, as a possible reason why a second collective letter was not drafted to back the nominee, but said he hadn't spoken with other faculty about it.
The professor said he didn't believe the first letter backing Walker's nomination went far enough in supporting the nominee, "but as a symbol of unity, I wanted to join." "Justin's a real solid guy and I think he's a really bright guy," Weaver added. "And so I have no problem with supporting a good, decent person."
Luke Milligan, who also signed the original letter of support and submitted his own for the appeals court nomination, said in an email he believes Walker will "make a terrific judge on the D.C. Circuit. I was more than happy to write a letter on his behalf."
Another faculty member, Manning Warren, also submitted a letter of recommendation to the committee for the circuit court seat after not signing the joint letter for Walker's district nomination.
Walker has been a more relevant topic of conversation on campus in recent days, after Fix the Court revealed Walker and his wife Anne gave a loan of up to $100,000 to a married pair of Walker's former law students, Jake Grey and Leah Spears. Grey was Walker's teaching assistant and helped teach the judge's class as he joined the federal bench.
A DOJ spokesperson told the NLJ the loan was disbursed after the students graduated from the law school, and the couple repaid the loan in full after refinancing through their builder.
Those reports about the loans are now circulating among the faculty, and were discussed at a faculty meeting Tuesday. Faculty members interviewed about the reports said they don't know enough about the circumstances of the loan. However, several said the situation still raised some concerns and they want to look into the matter further.
"I would need to know a lot more about the circumstances that led to the loan—the terms of it and the relationship that they had at the time of the loan—to know whether I would feel like it was appropriate or not," Marcosson said.
Crawford, the dean of the school, said in an email he learned of the loan last week, when a colleague forwarded him the Fix the Court post. He said Grey "assumed a role assisting" Walker in teaching his class once Walker was confirmed to the federal bench in October 2019, as part of a "prior agreement with me and immediately affected faculty." "Judge Walker committed that he would continue to teach all classes and grade assignments," the dean added.
Crawford said the school advertised for someone to assist with Walker's classes for the spring semester of 2020, and received three applications—one from Grey, and two others from out of state. "Mr. Grey was then contracted to assist and received compensation for that work in Spring 2020," the dean wrote.
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