Stacking the Bench

One of Trump's latest judicial nominees, Brett Talley, has caught the public spotlight for good reason. But the glare of his inexperience is obscuring an even more troubling story about what is at stake in Alabama's Middle District, where there are currently two vacancies on the bench.

Talley is only 36 -- and extraordinarily unqualified. He was approved by the Senate Judiciary Committee last week for a lifetime position on the Alabama federal bench and will be voted on by the full Senate as early as this week. As The New York Times reported, Talley has never tried a case, has practiced law for just three years and was unanimously deemed "not qualified" by the American Bar Association -- a distinction given to only four nominees since 1989. Talley also provides plenty of media-distracting fodder: He's a horror novel writer, once belonged to a ghost-hunting group and is a right-wing blogger who has disparaged "Hillary Rotten Clinton." Talley also pledged his "financial, political and intellectual" support to the NRA after the Newtown shooting. Even so, he refused during questioning by Sen. Dianne Feinstein (D-CA), to say he would recuse himself from cases involving guns.

The subplot to this story, however, began to unfold Monday when The New York Times reported that Talley failed to disclose in his Senate questionnaire, or during his hearing, or when specifically discussing his contact with White House lawyers, that he happens to be married to Ann Donaldson, the chief of staff to White House counsel Donald McGahn. Talley told the senators in his testimony that he regularly advised judicial candidates in his current role as deputy assistant attorney general in the Department of Justice's Office of Legal Policy. He should know better than most that he is expected to be transparent. This is not a small oversight.

The Times explains the conflict of interest here:

District judges often provide the first ruling when laws are called into question, decisions that can put them at odds with the White House and its lawyers. Last month, for example, judges in Hawaii and Maryland temporarily blocked Mr. Trump's travel ban.

But it's not just that President Trump is trying to recreate the bench in his own image: white, male and conservative. Christopher Kang, a former deputy counsel to President Obama, who was in charge of the selection, vetting and confirmation of President Obama's judicial nominees for four years, explains in a piece on HuffPost why the Trump administration would not only nominate such an unqualified candidate but would also, presumably, advise him to downplay his ties to the White House counsel's office.

Back in May, President Trump had announced a different, more qualified, candidate to fill this seat in Alabama's Middle District. His name is Judge Terry Moorer, and he has served in Alabama's Middle District for nearly 30 years -- most recently, as US Magistrate Judge for 10 years. Before that, he was an assistant US attorney for 17 years. Prior to those appointments, he led a legal task force that fought organized crime and drug trafficking for six years. He is a retired colonel in the Alabama National Guard and the primary architect of the Alabama Code of Military Justice. He is also Trump's only African-American judicial nominee.

So what happened? Kang writes that in September, President Trump announced this "little-noticed bait-and-switch," and moved Judge Moorer's nomination to the Southern District of Alabama in order to nominate the ill-equipped Talley for a seat that by all appearances should have gone to Moorer. "At first blush, it seemed like the more qualified, African-American nominee was simply shoved aside for a less qualified white man," writes Kang. But there are two open seats on the district bench, and a woman, Emily Coody Marks, was nominated for the other seat. Marks has escaped media scrutiny, but the 44-year-old lawyer has spent her entire legal career at one Montgomery law firm, opposing claims of civil rights violations, employment discrimination and labor violations according to a well-sourced legal blog, The Vetting Room.

Moorer's answers to questions from the Senate Judiciary Committee, writes Kang, reveal a more likely motivation. When Sen. Feinstein asked Moorer about the differences between the cases considered by the Middle and Southern Districts, he responded:

Montgomery is the capital city of Alabama; therefore, a few different types of cases may more likely be heard in the Middle District of Alabama, such as redistricting cases or public corruption cases involving statewide elected officials.

Kang adds that the Middle District is also where constitutional challenges to Alabama state laws are heard: "Just last month, a judge in the Middle District ruled that two Alabama laws that would have severely restricted abortion access are unconstitutional." This is why the Trump administration may aim to put the least-experienced candidates in the positions that will hear "the most political and consequential cases," writes Kang. "President Trump once again has prioritized an ideological rubber stamp over everything else, including his own initial pick."

Vox totals 145 federal court vacancies, including 137 in the US Courts of Appeals and the District of Courts. With 47 nominees already named, the Trump administration is moving quickly. Talley is not the first questionable nominee, and he won't be the last as BillMoyers.com reported last summer. Democrats won't be able to filibuster unqualified nominees because Sen. Harry Reid (D-NV) moved to limit the filibuster for lower-court judicial picks in retaliation for partisan gridlock during the Obama years.

The federal judiciary is also aging. According to an analysis by Ballotpedia, by the end of 2020 just over half of the district and appeals court seats will be filled by Trump, vacant or held by a judge who is ready to retire. Any balance in the make up of our judiciary is eroding quickly. Call it a political horror story, but Brett Talley is by no means its main character.