For Senate Majority Leader Mitch McConnell, there was no more important goal in 2016 that preserving a Republican majority on the U.S. Supreme Court. He blocked President Obama’s nominee for nearly a year by the simple expedient of refusing to consider it.
After Donald Trump won the presidency, McConnell scuttled the Senate filibuster for high court nominees, so only a simple majority was necessary for these lifetime appointments – and moved Neil Gorsuch and Brett Kavanaugh onto the court. He also used the Federalist Society list of extreme conservatives in an attempt to pack federal appellate and trial courts.
McConnell has pushed through nominees, including several rated unqualified by the American Bar Association, at a record-breaking clip. The largely unquestioned theory is that, whatever happens in November, his efforts will control the judiciary for years.
Yet there are limits to court-packing, whoever tries it. Once on the bench, judges have no obligation to reflect the views of those who appointed, or confirmed, them.
One example is Justice Lance Walker, the lone Trump nominee from Maine. Walker clerked for former Maine Chief Justice Dan Wathen, was nominated by Gov. Paul LePage in 2014 to the District Court, and promoted to Superior Court the following year.
When District Court Judge John Woodcock stepped down, Walker was recommended by Sens. Susan Collins and Angus King.
His father was a Maine Central Railroad engineer, and then a hardware store owner in Dover-Foxcroft. Walker worked his way through college and the University of Maine School of Law before going into private practice.
At his swearing-in, Justice Wathen counseled Walker “to love kindness, seek justice and walk humbly,” and he took the cue, saying that following Woodcock “felt a little bit like being a garage band asked to take the stage after the Beatles had opened the show.”
Walker has the ability to turn a phrase. His first major decision involved former GOP Congressman Bruce Poliquin’s claim that Maine’s ranked-choice voting system – first used in the 2018 election where he lost his seat to Democrat Jared Golden – was unconstitutional.
Poliquin asked Walker to halt the tabulation, but he declined. In a briskly reasoned decision, Walker said vote-counting was essentially a state, not a federal issue, and that Poliquin’s recourse lay elsewhere.
He concluded, “I am not persuaded that the United States Constitution compels the Court to interfere with this most sacred expression of democratic will by enjoining the ballot-counting process and declaring Representative Poliquin the victor.” The congressman’s case never recovered.
On July 7, Walker decided another closely-watched case, upholding an Internet privacy law enacted by the Legislature after the Trump administration scuttled Obama-era rules.
Sen. Shenna Bellows (D-Manchester), the bill’s sponsor, explained that it prevents Internet providers, including cable companies and telecommunications giants, from collecting and selling user data. This is – unfortunately – a large part of the business model of monopolistic enterprises such as Google and Amazon.
Internet companies are, in essence, “common carriers” – though largely unregulated under the equally unfortunate 1996 Telecommunications Act, signed by Bill Clinton. The difference between them and Amazon is that no one orders or requests anything from them, yet they’re still trying to horn in on the lucrative “data mining” market.
The hearing on Bellows’ bill saw a spate of high-priced lobbyists descending on the State House – a phenomenon perhaps first seen in 1969, when Occidental Petroleum tried to site an oil refinery in Machiasport.
Now, pharmaceutical and telecommunications bills are what attract national lobbyists, and it was quite a show. Having failed to convince lawmakers, “the suits” turned to the courts.
Judge Walker was not impressed. He dismissed a claim that the law, which took effect July 1, was pre-empted by the federal statute, and was highly skeptical that it violated corporate free speech rights. In a much-quoted line, he called this a “shoot-the-moon argument,” and wrote, “Like Harold with a purple crayon, Plaintiffs have drawn themselves a steep mountain to climb.”
For those unfamiliar with the 1955 children’s classic, Harold creates the things he draws – a procedure unlikely to prevail in the real worlds of business and law. Bellows called the highly readable opinion “a delight.”
Having confounded certain expectations, at a time when judges are presumed to be political actors, Walker’s career on the bench should be an interesting one.
Just 48, he might win promotion, should moderate Republicanism return. Even now, Mainers can recognize Judge Walker as characteristic of the state’s tendency toward independent thinking.
We must all live with the decisions our courts hand down. Ensuring they are fair, reasonable and decided in accordance with the law is vital to rebuilding trust.
Douglas Rooks, a Maine editor, reporter, opinion writer and author for 35 years, has published books about George Mitchell, and the Maine Democratic Party. He welcomes comment at drooks@tds.net
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