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Analysis Law and Policy

Meet the Trump Judge Arguing the Government Can Execute People Any Way It Wants

Lisa Needham

The success of these judges, it turns out, is in part attributable to cold, hard cash.

Each month, Rewire.News is examining the Trump judges behind some of the worst decisions in recent weeks. Read last month’s column here.

As we noted in April, President Donald Trump has appointed a staggering number of judges to the federal bench, including more circuit court judges than any president by this point in their tenure.

The success of these judicial nominees, it turns out, is in part attributable to cold, hard cash—or donations to members of the Senate Judiciary Committee, which holds confirmation hearings for each nominee. A Roll Call investigation published in March found that just three Republican senators on the 22-member Judiciary Committee got more contributions than the rest of the committee combined. And nearly all of that money came from judicial nominees the three senators—Sens. Ted Cruz and John Cornyn of Texas and Sen. Lindsey Graham of South Carolina, the committee’s chair—eventually supported.

The donors include one of the judges we are looking at this month, former deputy White House counsel Gregory Katsas, who is making his mark on the U.S. Court of Appeals for the D.C. Circuit. Katsas gave several thousand dollars to Senate Judiciary Committee members.

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We also take another look at Kyle Duncan, a Trump appointee to the U.S. Court of Appeals for the Fifth Circuit. We included him in our column last month with his decision to allow Texas to impose an abortion ban during the COVID-19 pandemic. We also profile Amul Thapar, a Sixth Circuit judge who is also on Trump’s shortlist for the U.S. Supreme Court, should another vacancy occur, and Justin Walker, who recently took the bench in Kentucky.

Gregory Katsas, D.C. Circuit 

Gregory Katsas was deputy White House counsel for Trump before being tapped to join the D.C. Circuit. He also clerked for U.S. Supreme Court Justice Clarence Thomas. Unlike some other Trump picks, Katsas had a wealth of experience prior to joining the bench, having argued cases in every federal court of appeals and at the U.S. Supreme Court. However, he’s no less hardline than his less-experienced counterparts.

In early April, Katsas joined with fellow Trump-appointee Neomi Rao to lift a preliminary injunction against federal executions. Under Attorney General William Barr, the U.S. Department of Justice reinstated federal executions after they had not been used for nearly 20 years. However, concerns about the lethal injection the government plans to use led to a federal district court issuing a preliminary injunction. The judge in the case noted that at least one of the four people on federal death row would likely succeed in a lawsuit against the federal government.

Injunctive relief is generally granted when the party seeking relief would suffer “irreparable harm.” In this instance, the judge wrote, the plaintiff inmates would “suffer the irreparable harm of being executed under a potentially unlawful procedure.”

The administration disagreed and appealed to the D.C. Circuit, where it found a friendly audience in Katsas and Rao. Katsas’ opinion spends a good deal of time on the history of executions, detailing various manners of death. But at root, Katsas’ opinion was about his belief that it’s “practically impossible” and “pointless” to have to adhere to the “minutiae” of state execution protocols. Put another way, Katsas doesn’t feel the federal government should have to follow rules about how it executes people.

Katsas also stated he would have reversed the preliminary injunction. In his view, the “important governmental and public interested in the timely implementation of capital punishment” is a more substantial harm than the possibility an execution method is impermissible or cruel and unusual under the Eighth Amendment. It’s well in keeping with the Trump administration’s desires to speed these executions along, regardless of consequence.

Kyle Duncan, Fifth Circuit     

In the fight over allowing abortions to continue during the pandemic, Texas has fought tooth and nail in the courts to ensure abortion is banned. A dizzying series of court rulings and reversals by the state led to abortion being allowed because abortion providers don’t use hospital beds or request personal protective equipment, and Texas had carved out an exemption for procedures that met those exceptions.

Sitting on the Fifth Circuit, Trump-appointee Kyle Duncan has been at the forefront of that court’s desire to restrict or ban abortion. In March, he helped ensure Texas’ abortion ban could go into effect immediately, even as a lower court order had enjoined Texas from doing so.

In April, Duncan wrote an opinion granting Texas an extraordinary form of relief—a writ of mandamus—that allowed the state to keep its ban in place. Mandamus relief is when an appellate court reviews an issue before the lower court case has concluded and is very rare. The appellate court must determine the district court “clearly and indisputably erred” and that the error is so problematic the appellate court must step in immediately.

This isn’t the first time the Fifth Circuit has seemed amenable to this approach. Louisiana tried it with an abortion case last year.

In this instance, Duncan agreed with Texas that the ban on abortions was a mere “temporary postponement” without any real consequence. In doing so, Duncan ignored sound medical evidence from the American College of Obstetricians and Gynecologists and the American Board of Obstetrics & Gynecology that abortion is an essential and time-bound medical procedure.

About two weeks later, Duncan again upheld Texas’ ban, this time writing the opinion in conjunction with George W. Bush-appointee Jennifer Walker Elrod. Though the saga of Texas’ attempts to ban abortion during the COVID-19 crisis has ended, you can expect Duncan, a die-hard anti-choicer, to continue to carry the water for the Trump administration in this arena.

Amul Thapar, Sixth Circuit

In 2017, Trump elevated Judge Amul Thapar from the federal district court for the Eastern District of Kentucky to the U.S. Court of Appeals for the Sixth Circuit. He’s also on Trump’s shortlist for the U.S. Supreme Court. So it’s especially noteworthy that Thapar recently used a dissent in a Tennessee case to show off his anti-choice bona fides.

In early April, Tennessee Gov. Bill Lee (R) issued an executive order banning “elective and non-urgent” procedures. The order allowed medication abortion to continue but barred procedural ones. After several pro-choice organizations sued, the federal district court issued an injunction allowing procedural abortions to continue. On April 24, a divided Sixth Circuit panel upheld the injunction.

Two of the three judges on the panel ruled to uphold the injunction. The court held that the state would save only a “paltry amount of [personal protective equipment]” by denying women abortions and that “[a]s of today, a woman’s right to a pre-viability abortion is part of ‘the fundamental law.’”

The court’s decision was narrowly tailored, however, carving out only three classes of people who could obtain procedural abortions: (1) people who would lose their ability to obtain an abortion if their procedure was delayed until after April 30; (2) patients who would be forced to undergo a lengthier and more complex procedure if their procedure was delayed until after April 30; (3) people who would be forced to undergo a two-day procedure, only available in Nashville and Memphis, if their procedure was delayed until April 30. In other words, the majority’s decision worked to balance the concerns of the state with the constitutional right to abortion.

Thapar dissented, calling the injunction “overly broad” and said the majority had “brazenly substituted its own policy views for those of the elected officials who are actually fighting the pandemic.”

Thapar used his dissent in large part to express his unhappiness that the lower court had not made extensive factual findings and took only four days to issue its initial injunction. In doing so, Thapar willfully overlooked that time is of the essence in obtaining an abortion, scoffing at the idea that a three-week delay in obtaining an abortion would be a burden. That ignores the evidence that, as the American College of Obstetricians and Gynecologists and the American Board of Obstetrics & Gynecology have stated, abortion is a “time-sensitive service for which a delay of several weeks, or in some case days, may increase the risks or potentially make it completely inaccessible.”

This isn’t the first time Thapar has ruled to restrict the constitutional right to an abortion. In 2019, he was part of the Sixth Circuit panel that upheld an Ohio law stripping Planned Parenthood of funding for reproductive health services, simply because it also provides abortions.

If Trump gets to fill another Supreme Court seat, there is a real chance it would be filled by Thapar, who would bring with him his anti-choice views and dismissiveness of the need for reproductive health services.

Justin Walker, U.S. District Court for the Western District of Kentucky

At just 38 years old, Justin Walker has sat on the federal district court in Western Kentucky for only six months, but Trump has already nominated him to replace Thomas B. Griffith, who is retiring later this year from the U.S. Court of Appeals for the D.C. Circuit. That’s in spite of the fact that the American Bar Association deemed Walker “not qualified” for the district court judgeship because, in part, he had never tried a case.

However, during the U.S. Supreme Court confirmation hearings for Justice Brett Kavanaugh, Walker made the rounds of talk shows—over 100 of them between June and October 2018—ceaselessly defending Kavanaugh, who Walker had once clerked for, and attacking Democratic senators.

In what will likely be one of his final opinions as a district court judge, given that Senate Majority Leader Mitch McConnell (R-KY) appears to be fast-tracking Walker’s path to the D.C. Circuit, Walker wrote what can only be described as a partisan screed in a religious liberty case.

Walker presided over On Fire Christian Center v. Fischer, where an evangelical church in Louisville, Kentucky, preemptively sued the city and Mayor Greg Fischer over the city’s alleged decision to bar the center from holding drive-in services on Easter Sunday. Unsurprisingly, Walker found in favor of the church, holding that religious freedom would trump any coronavirus-related safety concerns—but it was no ordinary opinion.

Walker’s opinion began surreally, declaring Fischer had “criminalized the communal celebration of Easter” and talking about the pilgrims and the Bible and deceased Democratic Sen. Robert Byrd (D-WV) being a one-time member of the Ku Klux Klan. Walker eventually got to the facts of the case, saying Fischer was issuing “threats” when he said, “In order to save lives, we must not gather in churches, drive-through services, family gatherings, social gatherings this weekend.” Walker also took issue with the idea that On Fire members could celebrate online, saying that “the Free Exercise Clause protects their right to worship as their conscience commands them”—even, apparently, if that created a safety risk during a pandemic.

Worst of all, perhaps, it appears Walker took the most dramatic and high-profile move he could in ruling on the case—he issued a temporary restraining order, complete with a 20-page opinion. However, it appears Walker didn’t ever actually talk to Fischer nor hold a routine status conference, a brief procedural phone call that could have resolved whether Louisville was truly going to stop On Fire from its drive-in Easter celebration.

Barring anything extraordinary happening, Walker will soon bring this combative style to the D.C. Circuit Court, considered the second-highest court in the country thanks to the number of high-profile cases it hears. He would join Neomi Rao, another Trump judge who has already made a name for herself as a jurist eager to defend Trump’s every action.

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