Emily Coody Marks – Nominee for the U.S. District Court for the Middle District of Alabama

Typically, public defenders have a reputation as being politically liberal, as prosecutors have a reputation as politically conservative.  However, this reputation is undeserved.  For example, a high proportion of President Obama’s judicial nominees were former prosecutors,[1] while President George W. Bush appointed many public defenders to the federal bench, including Judges Juan Sanchez, Aida Delgado-Colon, and John E. Jones.  Emily Coody Marks, a Montgomery based labor attorney nominated to the Alabama federal bench, has significant ties of the indigent defense community.

Background

Marks was born Emily Michele Coody on March 6, 1973 in Tuscaloosa, AL.  Marks attended Spring Hill College, a private Jesuit college in Mobile, AL, graduating magna cum laude in 1995.  After graduating, Marks joined the University of Alabama School of Law, graduating in 1998.

As a law student, Marks worked as a summer associate for Ball, Ball, Matthews & Novak, P.A.  Upon graduation, Marks was hired by the firm as an associate.  In 2005, Marks was elevated to become a partner at the firm, a position she holds to this day.

Since 2005, Marks has been a Board Member for the Federal Defenders for the Middle District of Alabama, which represents indigent defendants in the U.S. District Court for the Middle District of Alabama.  Marks served as Vice President of the Board from 2013-14 and the President from 2014-16.

History of the Seat

Burke has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened on August 22, 2013, when Judge Myron Thompson moved to senior status.[2]  While the seat opened only a year into President Obama’s second term, negotiations between the Administration and Alabama’s Republican senators fell apart and no nomination was ever made to fill the seat.[3]  President Trump announced Marks’ nomination to the vacancy on September 7, 2017.[4]

Legal Experience

Marks has spent her entire legal career at the firm of Ball, Ball, Matthews & Novak, P.A., serving as a summer associate and an associate before becoming a partner in the Montgomery Office in 2005.  At the firm, Marks focuses primarily on the defense of labor, employment and civil rights claims.  For example, Marks successfully defended the Alabama Department of Conservation against a suit by terminated employees who sought damages for denial of Equal Protection and Due Process rights, and defamation, among other claims.[5]

Notably, Marks represented an apartment complex being sued for wrongful death based on a drowning death in the complex’s swimming pool.[6]  The plaintiffs filed suit within the two-year statute of limitations, but, rather than paying the filing fee, they filed an affidavit of hardship and requested waiver of the fee.  By the time the court granted the request, the statute of limitations had passed.  Marks successfully obtained a writ of mandamus from the Alabama Supreme Court ordering the case to be thrown out due to its untimely filing.[7]

Marks also frequently defends municipalities and towns from civil rights and other claims brought by plaintiffs.  Notably, Marks has defended a number of jurisdictions against Sec. 1983 claims brought for false arrest or police brutality.[8]  Marks has also defended municipalities against employment and ADA claims.[9]

Political Activity

Marks, a Republican, has a relatively short record of political activity.  In 2017, Marks made a $500 contribution to the campaign of appointed Sen. Luther Strange.[10]  Marks also served on the host committee of a campaign event for Strange on April 11, 2017.  Strange, a Republican, lost his runoff against controversial former Alabama Supreme Court Justice Roy Moore.

Overall Assessment

While judicial observers who are concerned about the dominance of former prosecutors on the bench may be relieved by Marks’ ties to the indigent defense community, there is no reason to doubt that Marks will be a conservative voice on the bench.  Most of her legal career has focused on opposing claims of civil rights violations, employment discrimination, and labor violations.  Her successful obtaining of a writ of mandamus to dismiss a wrongful death action that was filed (but not paid for) before the statute of limitations could also be used against her.  Marks’ supporters can reasonably argue that, in defending against civil rights and discrimination claims, Marks was merely demonstrating zealous advocacy.  Nevertheless, just as Republicans have routinely used the zealous advocacy of plaintiffs’ attorneys and public defenders against them in the confirmation process, Marks may face the flip side of such opposition.


[1] The Editorial Board, The Homogenous Federal Bench, N.Y. Times, Feb. 6, 2014, https://www.nytimes.com/2014/02/07/opinion/the-homogeneous-federal-bench.html.

[2] Rickey Stokes, Federal Judge Myron Thompson Moves to Senior Status – Leaves Alabama Appointment for President of United States, Rickey Stokes News, Aug. 24 2013, http://www.rickeystokesnews.com/article.php/federal-judge-myron-thompson-moves-to-senior-status–leaves-alabama-appointment-for-president-of-united-states-45071.  

[3] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[4] Press Release, White House, President Donald J. Trump Announces Seventh Wave of Judicial Candidates (Sept. 7, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/09/07/president-donald-j-trump-announces-seventh-wave-judicial-candidates).    

[5] Brackin v. Anson, No. 2:12-cv-750-WKW, 2014 WL 555315 (M.D. Ala. Feb. 12, 2014), aff’d, Case No. 14-11180-C, 585 Fed. App’x 991 (11th Cir. Sept. 25, 2014).

[6] Ex Parte Courtyard Citiflats, LLC., 191 So. 3d 787 (Ala. 2015).

[7] See id.

[8] See, e.g., Windham v. City of Fairhope, 597 Fed. Appx. 1068 (11th Cir. 2015); Johnson v. City of Clanton, Ala., No. 2:04-cv-117-F(WO), 2005 WL 1618557 (M.D. Ala. July 7, 2005); Nicholson v. Moates, 159 F. Supp. 2d 1336 (M.D. Ala. 2001).

[9] See, e.g., Cotrell v. Chickasaw City Sch. Bd. of Educ., No. 16-503-CG-N, 2017 WL 562420 (S.D. Ala. Jan. 23, 2017); Daniel v. Huntsville City Bd. of Educ., No. 5:16-cv-1919-CLS, 2017 WL 1282319 (N.D. Ala. April 6th, 2017); Quest v. Ala. House of Reps., No. 2:04-cv-077-MHT, 2006 WL 1476112 (M.D. Ala. May 24, 2006). See also Holmes v. Escambia Cnty. Sheriffs’ Dep’t, No. 14-0363-WS-M, 2015 WL 2095671 (S.D. Ala. May 4, 2015).

[10] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=emily+marks&order=desc&sort=D(last visited Oct. 15, 2017).  

3 Comments

  1. Pingback: Jeff Beaverstock – Nominee for the U.S. District Court for the Southern District of Alabama | The Vetting Room

  2. Pingback: Judge Terry Moorer – Nominee to the U.S. District Court for the Southern District of Alabama | The Vetting Room

  3. Pingback: Stacking the Bench | Donald J. Trump No. 45

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