Judgement Call: Senate Called Back in Pandemic to Confirm Climate Denier

May 4, 2020


The U.S. Senate is officially returning to work today. And dealing with the coronavirus isn’t the only thing on its agenda. 

According to Politico, one of Mitch McConnell’s reasons for ordering hundreds of people to return to D.C. during a pandemic was to quickly confirm one of Trump’s controversial judicial nominees for a seat on one of the nation’s most powerful courts—a seat that isn’t going to be vacant until September. 

This nominee just so happens to be one of McConnell’s protégés. Justin Walker, a 38-year-old former clerk for Brett Kavanaugh, had never been a judge; never tried a case; never served as co-counsel; and received a rare “not qualified” rating from the American Bar Association before McConnell confirmed him to his first federal judgeship last year. 

Now, Walker is up for a lifetime appointment on the country’s second-highest court, the D.C. Circuit Court of Appeals—which also just so happens to be the most important court for climate change policy and regulation. 

Walker has never even stated on the record if he actually accepts the science of climate change. 

In fact, the only thing he’s ever said about climate change is, well, pretty stupid.

In advance of his first confirmation to a federal judgeship last year, Democratic Senator Dianne Feinstein asked Walker if he believes “human activity is contributing to or causing climate change.” 

Walker declined to give an answer. “These issues are implicated by pending or impending litigation,” he replied. “The Canons of the Code of Conduct for United States Judges therefore prohibit me from expressing a view.”

I’ve heard a lot of weird responses to this question before, but never this one. Kyle Tisdel, climate and energy director at the non-profit Western Environmental Law Center, confirmed my suspicions. “This is also not a common response for judicial nominees,” he said. “And not a great indication.”

I asked Tisdel and four other experts in climate law if Walker might be prohibited from speaking about climate science because of an ethical rule, or because of pending or impending cases before the D.C. Circuit. They all said no. 

The first reason Walker is allowed to talk about climate science is because there are no pending cases over whether human activity causes climate change, and likely never will be. The D.C. Circuit has already affirmed that human activity contributes to climate change. “A panel including a conservative judge unanimously upheld that finding,” noted David Doniger, a senior attorney at the National Resources Defense Council. “The Supreme Court denied certiorari when asked for review. The Trump EPA has taken no steps to reverse the finding.” In other words, it’s done. Not pending. Not impending. It’s settled.

The second reason Walker isn’t “prohibited” to speak about climate science is that the ethical rule he’s talking about applies to legal issues only. “Human contribution to climate change isn’t a legal issue,” said Sean Hecht, co-director of UCLA’s environmental law clinic

“There’s nothing that prohibits a judge, or a nominee, from explaining their view of a scientific issue, or even a public policy issue, if there is no pending case,” he added. “And there isn’t a pending case.”

Kassie Siegel, director of the Center for Biological Diversity’s Climate Law Institute, agreed. “It’s an absurd response,” she said. “And nobody should be appointed to the federal bench who won’t acknowledge basic principles of science.”

Walker’s inexperience with basic scientific principles may have to do with his overall inexperience with climate litigation in general. Based on a review of his work, Walker doesn’t appear to have ever worked on a case related to climate change. 

Walker did, however, work briefly on a case very near and dear to the climate community’s heart: the government’s fraud cause against Big Tobacco, alleging a coordinated campaign to deceive the public about tobacco’s health impacts. 

Walker, of course, worked on a brief on behalf of British American Tobacco, trying to get the company to pay less than the government sought.

During his brief career as an associate at Gibson Dunn and Crutcher, Walker “primarily represented corporations” facing civil litigation in federal and state courts. Walker also briefly worked for Dinsmore & Shohl LLP, a staunch advocate of coal interests. The firm is a member of the Ohio Coal Association, the Kentucky Coal Associationthe West Virginia Coal Association, and the National Mining Association.

Walker has also been a member of the Federalist Society since 2006. According to DeSmog, the society “has consistently published articles and hosted debates that frame investigations into ExxonMobil and think tanks that questioning the existence of man-made climate change as attacks on free speech.

”The group has also regularly hosted talks by individuals who oppose the mainstream consensus on man-made climate change including Willie SoonOren CassSteven Hayward, and others.”

If Walker is appointed to the federal bench this week, he’ll gain a lifetime appointment on one of the most powerful courts in the country—especially when it comes to climate change.

“The D.C. Circuit is absolutely critical to climate law,” said Dave Weiskopf, senior climate policy advisor for NextGen America. “Every challenge to federal rulemaking goes there.”

Technically the second-highest court in the nation, the D.C. Circuit regularly hears cases over climate change policy and regulation. That’s because the court has “exclusive original jurisdiction over challenges to many Clean Air Act rulemakings by EPA,” Hecht said. The Clean Power Plan; fuel economy standards; the Trump administration’s expected repeal of methane leak standards—all are either currently before the D.C. Circuit, or on the court’s docket.

The Supreme Court can review D.C. Circuit decisions, but its review is extremely discretionary—meaning oftentimes, the D.C. Circuit is the only stop for lawsuits over climate-related policy or regulations.

“If you’re concerned about the future of climate change regulation in the United States, then you should concerned about who sits on the D.C. Circuit Court of Appeals,” said Michael Burger, executive director of Columbia University’s Sabin Center for Climate Change Law. 

3 Responses to “Judgement Call: Senate Called Back in Pandemic to Confirm Climate Denier”

  1. Sir Charles Says:

    Senate Minority Whip Dick Durbin’s (D. IL) just started a petition against the appointment of Justin Walker. More here. Or go directly to the petition page.

  2. Roger Walker Says:

    This has “Shock Doctrine” written all over it. Oh, America, what have you become?

    I wish McConnell long life, and ceaseless, raging toothache.

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