A Judge Who Isn’t?
Terry H. Schwadron
Nov. 14, 2017
Over and over, the Trump White House is insisting on political kinship among its appointees rather than expertise. It’s a formula that will produce policy that is pro-business and anti-consumer protection or anti-worker and that is bound the land police recommendations in court.
So, the EPA is picking industry representatives for various policy advisory roles over scientists, the Department of Education is dropping experienced folks for charter advocates or those favoring lenders over students in consideration of student loans — and now, true conservatives for vacant judgeships, the exact positions that will rule on the appropriateness of these policies.
The Senate Judiciary Committee voted 11–9 along party lines to approve Brett J. Talley, 36, to a federal court judge in Alabama, despite the fact that he has never tried a single case and has been a lawyer for only three years. But he does have a record of incendiary blog and Twitter posts denounced “Hillary Rotten Clinton” and calling proposed gun control legislation following the Sandy Hook School shootings “the greatest attack on our constitutional freedoms in our lifetime.”
I think we understand where he stands politically.
The American Bar Association reviewed his materials and rated him “not qualified.” Yet the Judiciary Committee approved him anyway, a virtual guarantee that the full Senate will ratify the decision. As it turns out, three previous Trump judicial nominees have received not qualified ratings. Since 1989, the bar association had unanimously rated only two other judicial nominees as not qualified.
The White House has made it clear that Donald Trump wants to fill vacant judgeships with staunch conservatives. Republicans had blocked Obama appointees for up to 100 vacancies. Trump has made 59 appointments.
Trump has praised the appointment of judges such as Talley as the “untold story” that “nobody wants to talk about.” Last month, Trump pointed out that the judicial appointment “has consequences 40 years out, depending on the age of the judge.”
Talley is a deputy assistant attorney general at the Justice Department, has been approved for a lifetime federal district judgeship. He is graduated from Harvard Law School in 2007. Talley’s lack of experience drew searing questions from Democratic members of the committee. Senator Richard J. Durbin (D-Ill) asked Mr. Talley, “Do you think it is advisable to put people with literally no trial experience on the federal district court bench?” Talley responded, “It would be inappropriate for me as a nominee to comment on the advisability of any nomination,” he wrote.
Sen. Dianne Feinstein (D-Ca) learned that he had never argued a motion in court. She also asked about a 2013 blog post that armed revolution was an important defense against tyrannical government. Talley said he did not believe any situation in American history — with the “possible exception” of slavery — had called for armed rebellion. Feinstein also asked whether he would recuse himself in gun cases. He said no.
Sen. Charles E. Grassley, R-Iowa and the chairman, said “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” and he dismissed the ABA judgment of “not qualified.”
According to the New York Times, every president since Dwight D. Eisenhower, with the exception of George W. Bush, screened potential nominees with the American Bar Association — a tradition the Trump administration has decided against.
Of course, it is possible that Talley will be a fair judge, depending on the kind of cases that come before him. It is also possible that those industry representatives now serving on EPA panels will come up with recommendations on policy that actually reflect an outrageous attempt to pour poisons into clean water sources.
But the consistent message is a kind of anti-intellectual, anti-experience approach to matters of public policy and spending that we should find troubling. Adherence to political slogans and campaigning are not substitutes for qualifications. When the president nominated Neil Gorsuch for the Supreme Court, he managed to find a highly experienced judge who also had political — and even judicial — leanings that comported with Trump’s.
For the president to name a candidate like Talley is simply lazy, in my view. He is not looking hard enough. For the Senate Judiciary Committee to approve him smacks me as worse. They do know better.
In the end, it is why elections and politics, the stuff we are so quick to dismiss from our lives, do matter.