Two years ago, the First Assistant Attorney General for the Texas Attorney General’s Office, Jeff Mateer, saw his nomination implode as several controversial comments he had made in the past surfaced.  President Trump has now nominated Mateer’s deputy, Brantley Starr, to fill a lifetime appointment in Texas, where Mateer’s litigation history is likely to be a cause of controversy.

Background

A native Texan, Brantley David Starr was born in San Antonio in 1979.  He attended Abilene Christian University, receiving his Bachelor of Arts summa cum laude in 1999 and a Juris Doctor from the University of Texas School of Law in 2004 (overlapping at both institutions with fellow Northern District nominee Matthew Kacsmaryk).^[1]  After graduating from law school, Starr spent a year at the Office of the Texas Attorney General and then clerked on the Texas Supreme Court for Justice Don Willett (now a judge on the U.S. Court of Appeals for the Fifth Circuit).  

After his clerkship, Starr rejoined the Texas Attorney General’s Office as a Fellow and Assistant Solicitor General.  In 2008, he joined King & Spalding LLC in Austin as an associate.  In 2011 he returned to the Texas Supreme Court as a Staff Attorney for Justice Eva Guzman.  In 2015, he rejoined the Texas Attorney General’s Office for a third time and currently serves as Deputy First Assistant Attorney General, working directly under former judicial nominee Jeff Mateer.

History of the Seat

Starr has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas.  The Northern District is facing a high level of turnover, with five of the twelve allotted judgeships for the District currently vacant.  The high level of vacancies have been exacerbated by the Republican Senate’s failure to confirm three Obama nominations to the Northern District in the 114th Congress.

The vacancy Starr has been nominated to fill opened on September 22, 2018, when Judge Sidney Fitzwater^[2] moved to senior status.  For his part, Starr interviewed for a judicial appointment in early 2017, but was not recommended at that time.^[3]  Rather, Starr’s name wasn’t sent to the White House until July 2018, when he interviewed with the White House Counsel’s Office.  Starr was finally nominated on March 11, 2019.

Legal Experience

Starr has worked in three primary legal positions in his career: as a Staff Attorney to Texas Supreme Court Justice Eva Guzman; at the Austin office of King & Spalding; and at the Texas Attorney General’s Office.  While Starr largely avoided controversy in the former two positions, his stints at the Attorney General’s Office have involved him in some of the most potent legal issues currently being litigated.

Litigation

At the Attorney General’s Office, Starr has been active in much of Attorney General Ken Paxton’s strategy of activist litigation.  For example, Starr participated in a suit against the Obama Administration’s guidelines supporting the rights of transgender students.^[4]  He also defended Texas’ strict voter ID law against a ruling that it was intended to discriminate against minority voters.^[5] 

Testimony

In addition to his litigation work, Starr has frequently testified before the Texas legislature about proposed legislation, representing the views of the Texas Attorney General.  Starr’s testimony on these matters has generally been strongly conservative, regardless of the underlying subject matter of the legislation.  For example, Starr testified that legislation protecting the rights of adoption agencies to refuse to place children with same-sex couples was needed to protect “religious rights of conscience.”^[6]  Starr also testified on legislation protecting religious objections to same-sex marriage, and persuaded legislators to drop language narrowing the protections only to actions clergy took “in their official capacity.”^[7]  In other testimony, Starr suggested that state lawmakers had the flexibility to punish immigration offenses as state crimes,^[8] and urged them to pass laws exempting religious groups from nondiscrimination ordinances on hiring and housing, allowing businesses not to sell to same-sex couples, and allowing government employees not to comply with Supreme Court precedent supporting same-sex marriage.^[9]  Furthermore, in another instance, Starr testified that local district attorneys were neglecting enforcing the law on electoral and abortion related crimes.^[10]  In response, many local prosecutors wrote that Starr’s testimony was misleading and was part of a “false narrative.”^[11]

Writings

In addition to the public testimony Starr has offered in his official capacity, Starr has occasionally written on the law as well.  For example, Starr spoke favorably of Mateer’s ill-fated judicial nomination, stating:

“Jeff Mateer leaves a legacy of service to the State of Texas and will now extend that service to all Americans”^[12]

In another article which he authored on behalf of the Texas Attorney General’s Office, Starr spoke on the travel ban cases, arguing that the Constitution “cannot extend to someone who is both an alien and who has not yet been admitted into the country.”^[13]  In the article, Starr also suggested that a suit against Trump Administration executive orders against “sanctuary cities” may be meritorious.^[14] 

Political Activity

Starr has supported Ted Cruz’s campaigns, donating to him to 2011 and 2016.^[15]  In addition, Starr was a volunteer for Gov. Greg Abbott’s campaign in 2014.^[16]

Overall Assessment

Starr’s nomination has already been approved by the Senate Judiciary Committee on a party-line vote.  This means that, unless four Republican senators oppose Starr, his nomination will eventually be approved on the Senate floor.  For the reasons noted below, such approval is likely but not certain.

First of all, Trump judicial nominees have generally drawn approval from most Republican senators unless there are any particularly controversial or injudicious actions in their past.  While Starr’s record is strongly conservative, he does not have such actions.  Secondly, while Starr is young, his legal ability is largely beyond debate.

However, Starr’s advocacy and testimony on behalf of the Texas Attorney General’s Office may still draw fire.  For many, “religious conscience” laws are increasingly seen as licenses to discriminate.  As such, Starr’s assertive advocacy on their behalf, and his endorsement of Mateer, may ultimately become an issue.

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