A judge’s most important ethical obligation is to be free from bias. Judges must never allow their personal feelings or attachments — their political party, their religious affiliation — or the personal characteristics of those who appear before them to influence their decisions. Equally importantly, our judges must appear to be evenhanded. As the Code of Conduct for United States Judges says, a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Unfortunately, Justin Walker, President Donald Trump’s latest nominee to the District of Columbia Circuit — widely recognized as the second most important court in the country after the Supreme Court — cannot meet that high standard. The Senate Judiciary Committee is holding a hearing on Walker on May 6. Sen. Grassley should use that opportunity to oppose the nomination.
Judge Walker currently sits on the U.S. District Court for the Western District of Kentucky. On April 11, he decided a challenge to the City of Louisville’s “social distancing” public health order. That order restricted religious services along with a number of other gatherings; a church asked the court to find that the order was unconstitutional and allow them to hold drive-up Easter services.
Judge Walker ruled in the church’s favor, but that’s not what this is about. Reasonable people could disagree about the legal merits of the ruling. What reasonable people could not disagree about is Walker’s intemperate language, and the plain religious bias that he displayed in his written opinion.
His opening sentence sets the tone: “On Holy Thursday, an American mayor criminalized the communal celebration of Easter.” He then compares Louisville’s public health order to something that might be seen in “the pages of a dystopian novel,” emphasizing the significance to Christians of the Easter holiday. The parties are told that “[a]chording to St. Paul, the first pilgrim was Abel.” And he just goes on, filling the opinion with seemingly endless religious references and descriptions of the details of Christian doctrine mixed in with the law. At the end, Judge Walker goes so far as to try to describe Christian faith for the benefit of “the non-believer”: “for the men and women of [the church], Christ’s sacrifice isn’t about the logic of this world,” and “[t]he reason [members of the church] will be there for each other and their Lord is the reason they believe He was and is there for us.”
None of that theology had anything to do with the legal question before the court. The legal theory on which his decision was based was that the city was discriminating against the church, in violation of the First Amendment, because it allowed other, non-religious, drive-up activities to proceed. And the main question this theory, and the state-law claim the church also raised, required the court to answer was whether the City of Louisville could achieve its compelling public health goals without imposing such a restriction on religious activity.
No aspect of that legal question required Judge Walker to repeatedly refer to the day the mayor acted as “Holy Thursday.” Nothing required a lengthy excursus on Saint Paul and Abel. Nothing required the judge to invoke, as he did toward the end of the opinion, “the state-sponsored murder of God’s only Son.”
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Such a ruling is deeply troubling — indeed, disqualifying — because when a sitting judge in a United States Court presumes to subject the rest of us to an utterly legally irrelevant sermon, written in a tone of outrage, on the meaning of Easter and on the “state-sponsored murder” of Christ, there’s only one message that the public can hear: only Christians are welcome in this courtroom. Walker wrote his opinion not with the voice of the law, but with the voice of a particular faith. He displayed, in short, the opposite of the impartiality that the law requires of everyone who is given the duty and the privilege of wearing a robe.
Instead of invoking Saint Paul, Judge Walker should have taken Solomon — the Biblical paragon of evenhandedness — as a more appropriate role model. He is not fit to serve.
Paul Gowder is a Professor and O.K. Patton fellow in Law at the University of Iowa, where he teaches constitutional law, among other subjects. He’s the author of The Rule of Law in the Real World (Cambridge University Press, 2016).