In the world of judicial confirmation politics, fortune favors the reticent.  Despite this, the Trump Administration has been relatively bold in choosing nominees for the federal bench with a paper trail of controversial statements.  As such, Brett Talley, the youthful attorney chosen for the Middle District of Alabama, will likely face significant scrutiny over his thin legal resume and his long paper trail of political writings.

Background

A native Alabamian, Brett Joseph Talley was born in Birmingham in 1981. Growing up in small town Alabama, Talley attended the University of Alabama, graduating summa cum laude in 2004.  Talley went on to Harvard Law School, getting his J.D. in 2007.

Upon graduation, Talley joined the Washington D.C. office of Gibson, Dunn & Crutcher as an Associate.  However, after just a year there, Talley felt that “working at a big D.C. law firm was sucking out his soul.”[1]  So he took a two-year clerkship with Judge L. Scott Coogler with the U.S. District Court for the Northern District of Alabama.  After a year there, Talley transitioned to a second clerkship with Judge Joel Dubina on the U.S. Court of Appeals for the Eleventh Circuit.

In January 2012, Talley was hired by the Romney campaign as a Senior Writer and Speechwriter.  Talley continued to work for Romney through the campaign, and upon Romney’s loss, found a job as a Speechwriter for Sen. Rob Portman (R-OH).

In 2015, Talley was appointed by Sen. Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Talley served in that capacity until January 2017 when he was appointed Deputy Assistant Attorney General for the Office of Legal Policy in the Department of Justice.

In addition to his legal work, Talley is an accomplished horror writer, having published his first book, That Which Should Not Be, in 2011.[2]  Talley has written six other horror books and true ghost accounts, as well as numerous short stories.  He also maintains a blog titled The Site That Should Not Be to discuss horror fiction.

History of the Seat

Talley has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened on August 1, 2015, when Judge Mark Fuller resigned after his arrest for domestic violence.[3]  Despite the seat opening in 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.[4]

In June 2017, Talley was contacted by Sen. Richard Shelby’s office, asking for his interest in a judicial appointment.  Talley interviewed with the White House Counsel’s Office and the Office of Legal Policy in July 2017 and his nomination was announced on September 7, 2017.[5]

Legal Experience

Setting aside his clerkships and time as a speechwriter, Talley has had two main legal positions: as an associate at Gibson Dunn; and as Deputy Solicitor General of Alabama.  During the year he spent at Gibson Dunn, Talley represented a U.S. Congressman in a public corruption investigation, represented a landlord tenant case pro bono, and worked on an international investigation involving the Foreign Corrupt Practices Act.

As the Deputy Solicitor General of Alabama, Talley defended Alabama laws and convictions before state and federal courts.  For example, Talley unsuccessfully argued before the 11th Circuit for the execution of a defendant with impaired cognitive functioning and no memory of his crime.[6]  Talley also occasionally engaged state resources to sue the federal government, challenging, for example, EPA regulations intended to protect the habitat of marine wildlife.[7]   Finally, Talley also filed amicus briefs in other courts seeking to push conservative interpretations of the Constitution and state statutes.  For example, he submitted an amicus brief in a challenge to a San Diego ordinance regulating concealed carry permits.[9]

Writings

As noted above, Talley is an accomplished horror writer and maintains a blog to discuss horror fiction.  More pertinently, Talley maintained a second blog for a few months in 2013 titled Government in Exile – When Your Guy Didn’t Win, outlining his political views and criticisms of the Obama Administration.  In this blog, Talley attacked a number of political issues.  Most notably, Talley wrote on gun control and the Newtown massacre in a series of posts.  Specifically, Talley criticizes the post-Newtown gun control push, arguing that gun control would not have prevented the massacre, noting:

“As long as guns are legal, incidents like Newtown will continue to occur.”[10]

In another post, Talley criticizes Sen. Dianne Feinstein (D-CA) (who is now the ranking member of the Senate Judiciary Committee) for her views on gun control, noting:

“Feinstein comes by this view honestly.  She’s not trying to enslave us all, or strip away our rights, or set up a one world state.  She just hates guns.”[11]

Instead of gun control, Talley suggests that “a society that respects life” is the key to preventing mass shootings.[12]  He also calls on his readers to donate to the National Rifle Association.[13]

In other blog posts, Talley argues in favor of immigration reform,[14] noting that failure could push Hispanics further into the Democratic camp, and against drone strikes on American soil.[15]

Talley has also authored op-eds outside his blog and political career.  In 2016, Talley authored articles supporting the candidacy of President Trump.[16]  Post-election, Talley authored an op-ed criticizing liberals who opposed Trump supporters such as Attorney General Sessions and former advisor Steve Bannon, arguing that these critics were “weaponizing racism.”[17]

Political Activity

Talley, a Republican, worked as a researcher, speechwriter, and op-ed writer for the Romney campaign during the 2012 Presidential election.  Talley similarly served in a political capacity for Portman, producing columns, op-eds, speeches, and social media posts in support of the senator’s positions.

In addition, Talley donated $1000 to Portman’s re-election campaign in 2016, and an additional $250 to the Alabama Republican Party.[18]

Overall Assessment

Yesterday, we wrote on Holly Lou Teeter, the federal prosecutor whose eleven years of legal experience fell narrowly short of the ABA guidelines, which recommend twelve for federal judges.  Brett Talley, an attorney tapped for the Alabama federal bench, has even less experience, having practiced law for only three years (six if you include his clerkships).  Considering the fact that Talley is only 36, legitimate questions can be raised about Talley’s fitness for the bench.

Furthermore, Talley has an extensive history of strongly held political beliefs.  He has already expressed his opposition to most gun control, as well as to gay marriage,[19] and has indicated his strong opposition to liberalism and the Democratic party.  While many judges come from a political background, Talley does not share a extensive legal history that could temper the impact of his writings.  As such, Democrats will likely question him on whether his bias against Democrats could influence his rulings on the bench.

Given his youth, limited experience, and strongly expressed conservative beliefs, Talley will likely an objectionable nominee for most Democrats.  While Talley is still more likely to be confirmed than not, out of all the district court nominees reviewed thus far, he is the most likely to fall short.

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