Judge Walton Journeyed From Football to FISA Court

Judge Reggie Walton was appointed to judgeships by three presidents, and football helped him get there, the judge told Bloomberg BNA.

“I probably would not have gone to college” but for a football scholarship because “I didn’t come from a family with a lot of resources,” the senior judge for the U.S District Court for the District of Columbia said.

That opportunity set Walton on a journey that has included senior White House policy positions and serving as the presiding judge of the Foreign Intelligence Surveillance Court.

Walton — who is black and had run-ins with the law as a youth — says that though criminals should be punished, “the law should be compassionate.”

Formerly a Democrat, Walton changed his party affiliation to Republican because he believes blacks should have a voice in both parties.

Gridiron, Goals

Walton played as both a running back and defensive back on his high school football team in Donora, Pa. He was an all-district most valuable player in 1966, and was inducted into the Mid Mon Valley All Sports Hall of Fame in 2009.

Football was “critical in the things I’ve been fortunate enough to do in life” because it opened the door to college, Walton said. His skills on the field earned him a full scholarship to West Virginia State University, where he played fullback and special teams positions.

Attending college changed Walton’s perspective on education, he said.

“To be very candid, I didn’t have a significant interest in academics at that point because where I grew up, I had never seen anybody of color who held a position where they were making money based upon the use of their brain as compared to the use of their body.”

Walton said he “just didn’t perceive that an education was really going to improve my quality of life.”

“But after going to college I came to an appreciation that if I did well academically that it would open doors that otherwise would not have been available to me,” Walton said.

Foreign Intelligence Surveillance Court

U.S. Supreme Court Chief Justice John G. Roberts Jr. appointed Walton to a seven-year term on the Foreign Intelligence Surveillance Court in 2007. Roberts elevated Walton to presiding judge in 2013.

The FISC reviews federal government warrant applications to conduct electronic surveillance on individuals.

Leaks in 2013 from former National Security Agency contractor Edward Snowden suggested that the FISC’s approval rate of surveillance applications was more than 99 percent (82 U.S.L.W. 590, 10/22/13).

“I knew from my tenure on the court, and I didn’t believe it would be any different for my colleagues who also served at the time, that those statistics were not accurately reflecting reality,” Walton said.

Walton and his colleagues therefore started “to collect our own internal statistics to see exactly what the numbers were.”

“After a three-month period, and in a subsequent three-month period, we were able to internally show that about 24 percent of
the applications presented to the court by the Justice Department were either rejected or substantially altered in some material way.”

The court reported that to Congress, “but unfortunately it was never really reported widely in the media” that the court
wasn’t “just rubber-stamping everything,” Walton said.

“So unfortunately that perception still exists, but it did at least satisfy myself and the other members of the court that we were closely scrutinizing the applications presented to us and declining to authorize surveillance activity if we thought that the government did not make a showing sufficient to justify that.”

Crime, Compassion

Walton has been on both sides of the law and the courtroom.

Walton found himself “getting involved in several fights” as a teenager, and “as a result appeared in court on several occasions,” he said in a U.S. Courts interview video.

He later served as a public defender, assistant U.S. attorney and President George H.W. Bush’s senior White House adviser on crime in 1991.

As a judge, Walton helped establish and was the first presiding judge of his district’s reentry court, which helps those released from prison reenter society.

“I felt a long time ago that we needed to do something about individuals who were coming out of prison and going right back as a result of having violated the conditions of their release,” he told Bloomberg BNA.

His efforts with that court reflect that “while I believe that people should be punished for what they do, I also believe that the law should be compassionate,” Walton said.

Party Change

President Ronald Reagan nominated Walton, then a Democrat, to the District of Columbia Superior Court in 1981.

Walton was still a Democrat when he was appointed to be the associate director of the Office of National Drug Control Policy
in 1989 by President George H.W. Bush, the judge said.

When he “joined the Bush administration it became clear that there was a level of suspicion I think as a result of the fact that it was known that I wasn’t Republican,” Walton said.

“I didn’t necessarily change because of that, but I also felt very strongly that as a people,” if blacks were going to have political power, then “it was important that we be a part of both parties.”

When “you’re only aligned with one party, you could be taken for granted by that party and sort of written off by the other party,” he said.

Being “on the bench I’m not actively involved in politics, but I just thought it was important that the African-American vote be diversified or at least there be the perception that it’s diversified in order for people of color to really have political power in America.”

Race, Fairness

“Race is still an issue in America, so I can’t say that you totally eliminate it from your thought process as a judge,” Walton said.

But “at bottom I would hope to believe that you make the decision that other judges would make.”

Walton doesn’t believe that “by and large decisions should be” based on race.
“I think life experience can have an impact and maybe a greater impact than one’s race,” he said.

Hopefully “my perspective on fairness as it relates to race is heightened by the fact that I’m African-American, but I would hope that there are people who are not African-American who share the same perspective about fairness who would come out the same way that I would.”

Judicial Philosophy

Walton believes it’s important for judges to try to “assess what was the meaning of the legislature when legislation is adopted,” he said.

“On the other hand, I also think that you have to be appreciative that we are a changing society and sometimes the law has to adjust itself to take into account that society has changed,” he said.

However, “judges do have to be cautious in not being too free-wheeling in their interpretation of statutes,” he said.

Prison Rape Commission

President George W. Bush appointed Walton to chair the National Prison Rape Elimination Commission in 2004.

“We have been challenged to examine problems that we wish did not exist and confronted with accounts of sexual abuse that shocked and saddened us, partly because the pain of the experience was still evident in the victims’ voices as they testified before the Commission,” Walton wrote in a preface to the commission’s 2009 report.

The issue of prison rape “probably does not get enough attention,” he told Bloomberg BNA.

That’s because “unfortunately a lot of people have the perspective, and I heard this when I was chairing that commission,” that if a person doesn’t want to get raped, they shouldn’t commit crimes, Walton said.
“I don’t buy that proposition.”

Courts don’t sentence people “to being brutalized when they are incarcerated, and we know that when people are brutalized in that way, that when they do come out, and most will come out, they’re going to be more dangerous than what they were before,” he said.

It’s “imperative that we treat people humanely when they are incarcerated to ensure, or at least hopefully ensure, that when they come back out that they’re not going to be a greater threat to society.”

“And just from a human perspective,” it’s “deplorable what we heard about what happens to many people when they are incarcerated,” Walton said.

Not Slowing Down

Walton laughed when asked if taking senior status at the Washington federal district court in 2015 made him less busy.

“No, I haven’t slowed down at all, and I didn’t take senior status because I wanted to slow down,” he said.

There’s “an economic benefit to taking senior status, coupled with the fact it does give me a little greater flexibility to do some other things.”

That has included helping the “short-handed” Western District of Pennsylvania near his hometown, he said.

“I am probably more busy now” than “when I was an active judge,” Walton said.

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