Notice & Comment

D.C. Circuit Review – Reviewed: Judges Ken Starr and Justin Walker

The D.C. Circuit didn’t decide any cases this week … but the White House today did announce its nominee for the Court’s upcoming vacancy: Judge Justin Walker.

Here is the announcement:

I don’t know Judge Walker well. We met once at an academic workshop on administrative law. In my limited experience, I found him to be quite smart and personable. Based on his background and my time with him, I predict he will be an excellent judge on the Court.

That said, some folks are commenting that he is 37 years old, hasn’t been a district court judge very long, and that the ABA gave him an unqualified rating for the district court.

That criticism reminds me of a story from the history of the D.C. Circuit.

In 1983, there were vacancies on the Fourth and D.C. Circuits. The Attorney General of the United States wanted his young chief of staff to fill the vacancy in Virginia. A Virginia senator, however, had other ideas. Per the Washington Post (Sept. 26, 1983), here is what happened next:

The Senate confirmed by voice vote last week the nomination of Justice aide Kenneth W. Starr as a federal appeals court judge for the D.C. Circuit. Starr, 37, was found “qualified” by the ABA’s judicial evaluation committee. The four rankings used are: extremely well qualified, well qualified, qualified and unqualified. Arnold & Porter partner Brooksley Born, former head of the 14-member committee, said a “substantial majority” found Starr qualified. No word yet on when the White House will send up the expected nomination of Justice lawyer J. Harvie Wilkinson III, 38, for the appeals court seat on the 4th Circuit in Richmond.

Judge Walker’s credentials now are very similar to Judge Starr’s then. Both Walker and Starr clerked on a circuit court (Walker for then-Judge Kavanaugh on the D.C. Circuit and Starr for Judge Dyer of the Fifth Circuit) and the U.S. Supreme Court (Walker for Justice Kennedy and Starr for Chief Justice Burger). Given that the seat in question is on the D.C. Circuit, I’d give the point to Walker.

The similarities don’t end there though. Both Judges Walker and Starr left the Supreme Court to be associates at Gibson Dunn & Crutcher, one of the nation’s leading law firms. Starr left Gibson to work in a policy role at the Justice Department, while Walker left Gibson to be a law professor and to work at a Kentucky firm. I think those credentials are pretty comparable, especially because (1) Walker’s scholarship is focused on administrative law (the bread and butter of the D.C. Circuit) and (2) although it has only been a a short period of time, Walker already has been confirmed as a judge. Walker, moreover, also worked on the personal staff of a cabinet secretary; before law school, he wrote speeches for the Secretary of Defense.

Finally, although Judge Walker was previously deemed unqualified by the ABA (though some on the committee disagreed), that was because he hadn’t practiced law for 12 years or been a trial lawyer; the ABA specifically noted that “the Standing Committee does not have any questions about Mr. Walker’s temperament or integrity” and observed that “Mr. Walker has great potential to serve as a federal judge.” Notably, if I’m doing the math right, Judge Starr had only been out of law school ten years when he was nominated to the D.C. Circuit. Trial experience is also less meaningful on an appellate court.

Now, no doubt some readers won’t be impressed by this comparison to Judge Starr. After all, we live in political times, and many associate Starr with politics because of his life after leaving the bench. But when Starr left the D.C. Circuit to become Solicitor General, he was so well regarded in Washington that he was confirmed by unanimous consent. Indeed, here is the conclusion of then-Senator Joseph Biden’s statement for the record:

I believe that Judge Starr’s answers to my questions during the hearing and to my subsequent written questions suggest that he will bring to the Office of Solicitor General independence, competence, sound legal judgment, and due respect for the High Court that he must serve — all critical attributes for the important position for which he has been nominated. It is my hope that he truly understands and accepts what I believe should be the creed of every Solicitor General. First spoken by Frederick Lehmann, who served as Solicitor General between 1910 and 1912, that creed is this: “The United States wins its point whenever justice is done its citizens in the courts.” Accordingly, I will vote in favor of the nomination of Kenneth Starr to be Solicitor General of the United States.

135 Cong. Rec. S5609-01, 1989 WL 176331 (May 18, 1989).*

My conclusion? Judge Walker’s nomination is not unprecedented. Judge Starr did it first. And that’s not bad company for a nominee to the D.C. Circuit.

Congratulations Judge Walker!

* See also A New Solicitor General, Wash. Post. (Feb. 4, 1989) (“THE PRESIDENT is nominating Judge Kenneth W. Starr of the U.S. Court of Appeals for the D.C. Circuit to be the next solicitor general at the Justice Department. Judge Starr, competent, conservative and no zealot, strikes us as a reasonable choice.”).

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