Donald Trump nominates lawyer who has never tried a case for lifetime federal judgeship

Brett Talley, 36, has practiced law for just three years and moonlights as horror novelist

Kristine Phillips
Monday 13 November 2017 10:47 GMT
Brett Talley
Brett Talley (Matt McClain/The Washington Post)

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Brett Talley, a 36-year-old lawyer whom President Donald Trump nominated for a lifetime federal judgeship, has practiced law for only three years and has yet to try a case.

Before his nomination in September, he had been unequivocal about his political views. “Hillary Rotten Clinton might be the best Trumpism yet,” says a tweet from his account, which has since been made private. “A Call to Arms: It's Time to Join the National Rifle Association” was the title of a blog post he wrote in January 2013, a month after a gunman in Newtown, Connecticut, killed 27 people before taking his own life.

Talley, who also writes horror novels on the side, moved a step closer to becoming a federal district judge in his home state of Alabama on Thursday. Voting along party lines, the Senate Judiciary Committee, on which Republicans outnumber Democrats, approved Talley's nomination, which now goes to the Senate for a full vote.

Talley is the latest federal judicial nominee to draw scrutiny for what some say is his limited experience in practicing law and the level of partisanship he had shown on social media, on his political blog, and on several opinion pieces he had written for CNN. He has also received a “not qualified” rating from the American Bar Association (ABA), which vets federal judicial nominees.

The vote on Talley's nomination comes as Trump and Senate Majority Leader Mitch McConnell, Republican-Kentucky, continue to intensify efforts to place conservative jurists, some of whom are young, on the federal bench. As he stood next to McConnell during a news conference in October, Trump said the judicial nominations are the “untold” success stories of his presidency.

“Nobody wants to talk about it. But when you think about it, Mitch and I were saying, that has consequences 40 years out, depending on the age of the judge, but 40 years out,” Trump said. “So numerous have been approved. Many, many are in the pipeline. The level of quality is extraordinary.”

In a statement defending Talley's nomination, Senator Charles E. Grassley, Republican-Iowa, chairman of the Judiciary Committee, said he does not believe “extensive trial experience” is the only factor in deciding on a nominee's qualifications.

“Mr Talley has a wide breadth of various legal experience that has helped to expose him to different aspects of federal law and the issues that would come before him,” Grassley said.

Talley graduated from Harvard Law School in 2007. Shortly after, he became a law clerk in Alabama, spending two years at a federal district court and another two at the US Court of Appeals for the 11th Circuit. He worked as a political speechwriter for three years, first for Mitt Romney's presidential campaign in 2012 and then for Senator Rob Portman, Republican-Ohio, from 2013 to 2015.

In April 2015, Talley became an Alabama deputy solicitor general, a position he held for nearly two years until he became deputy assistant attorney general for the Justice Department in January.

Talley's lack of experience in the courtroom and his partisan commentaries, however, were repeatedly questioned by Democrats on the Judiciary Committee.

“Your overall qualifications and preparation for becoming a lifetime-appointed federal judge are a concern to me,” Senator Dianne Feinstein, Democrat-California, said, according to her written questions to Talley.

Senator Richard J. Durbin, Democrat-Illinois, did not mince words, asking questions like: “How can you claim to be qualified for a lifetime appointment to supervise federal trials on a daily basis when you have never yourself tried a single case?” and “Do you think it is advisable to put people with literally no trial experience on the federal district court bench?”

In response, Talley said he had previously argued motions in federal district court on behalf of the state of Alabama, often through written briefs than in person. He also said he had argued cases before the 11th Circuit appeals court and the Alabama Court of Criminal Appeals.

Talley said it would be “inappropriate” for him to comment on the decision to recommend him for the federal bench - a decision made by two US senators from Alabama, Richard C. Shelby and Luther Strange.

“Federal judges come to the bench from a variety of legal backgrounds, each with something to learn and something to contribute,” Talley wrote. “I have worked in all three branches of the federal government, in state government, and in private practice.”

In his previous job in Alabama, he said, he was “one of the highest-ranking lawyers in the state, handling the most sensitive and most important legal matters Alabama faced.”

Feinstein, the top Democrat on the committee, also spent a good portion of her 14-page questionnaire asking Talley about partisan statements he'd made in the past, including tweets such as:

“The press cares when you lie to the American people. Unless you are @HillaryClinton #LochteGate”

“The worst part of #NeverTrump is that they are helping Hillary win the election. Their self-righteousness while doing it is a close second.”

Talley had written political commentaries for CNN, including a 2016 article in which he said Clinton “has committed acts that would have resulted in the prosecution of ordinary citizens.” In the blog post in which he called on his readers to join the NRA, he criticised gun-control advocates, who, he said, “have exploited” the Newtown mass shooting to advance an agenda to strip people of their Second Amendment rights.

“These politicians either do not know or do not care that an armed, responsible citizenry is the last and greatest bulwark against tyranny that a nation can have,” Talley wrote in his blog, Government in Exile. “They certainly do not care about our right to bear arms, enshrined in the Constitution and reaffirmed by recent Supreme Court rulings.”

Talley said the post was meant to attract opposing views and encourage constructive discussion. He also said that he would recuse himself in cases in which his impartiality is questioned, as required by federal statute, and that his personal views on the Second Amendment and other issues “will have no bearing on how I would rule in a case.”

“Rather, I would be duty-bound to apply relevant Supreme Court and circuit precedent to the facts before me,” he wrote.

Talley is one of five judicial nominees whom the Judiciary Committee approved Thursday.

The Leadership Conference on Civil and Human Rights questioned his ability to be fair, particularly in presiding over cases with political overtones.

“Brett Talley is entirely unqualified for a federal judgeship because he lacks the breadth and depth of experience necessary for the job, and he has demonstrated ideologically extreme views that call into question his temperament and judgement,” Vanita Gupta, president and chief executive of the Leadership Conference on Civil and Human Rights, said in a statement.

In a 7 November letter to Grassley and Feinstein, the American Bar Association did not raise questions about Talley's temperament but said his lack of trial experience was a concern.

Carrie Severino, counsel for the conservative Judicial Crisis Network, criticised the American Bar Association, saying the group is not a nonpartisan organisation.

“The ABA is a liberal interest group. They have a long history of giving lower ratings to Republican nominees,” she told The Los Angeles Times.

The bar association gave a “not qualified” rating to four Trump judicial picks. Two, Talley and Leonard Grasz, an Omaha lawyer nominated to fill a vacancy on the US Court of Appeals for the 8th Circuit, were unanimously deemed to be unqualified. Two others, Charles Goodwin and Holly Teeter, nominees for federal district judgeship in Oklahoma and Kansas, respectively, were rated as “not qualified” in a split decision.

Previously, the association, which has been vetting judicial candidates since 1989, unanimously rated only two other judicial candidates as unqualified, both of whom were nominated by then-President George W. Bush.

Another Trump judicial nominee, Jeff Mateer, attracted controversy over earlier speeches in which he said transgender children are proof that “Satan's plan is working,” described same-sex marriage as a harbinger for “disgusting” practices such as polygamy and bestiality, and advocated for conversion therapy. He also had previously admitted discriminating based on sexual orientation.

The Washington Post

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