Brett Talley – Nominee for the U.S. District Court for the Middle District of Alabama

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.


[2] See id.

[3] Kyle Whitmire, Federal Judge Mark Fuller Resigns, AL.com, May 29, 2015, http://www.al.com/news/index.ssf/2015/05/federal_judge_mark_fuller_resi.html.  

[4] 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/.  

[5] 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).    

[6] Madison v. Comm’r, Alabama Dep’t of Corr., 851 F.3d 1173 (11th Cir. 2017).

[7] Alabama et al. v. Nat’l Marine Fisheries Service, et al., No. CV-16-00593 (S.D. Ala. Nov. 29, 2016).

[8] See Perry, et al. v. Wyeth-Ayerst Laboratories Co., et al., No. 99-0089, Circuit Court of Jefferson County (Miss.) (Judge Pickard), Vadino, et al. v. American Home Products Corp., et al., No. MID-L-425-98, Superior Court, Middlesex County (N.J.) (Judge Corodemus).

[9] See Peruta v. City of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 1995 (2017).

[10] Brett J. Talley, Are We Learning the Wrong Lessons From Newtown, Government in Exile, Jan. 14, 2013, https://happywarriordotme.wordpress.com/2013/01/14/are-we-learning-the-wrong-lesson-from-newtown/.  

[11] Brett J. Talley, Are Any Restrictions on Gun Ownership Legitimate, Government in Excile, Jan. 15, 2013, https://happywarriordotme.wordpress.com/2013/01/15/are-any-restrictions-on-gun-ownership-legitimate/.

[12] Brett J. Talley, The Wrong Lessons From Newtown: Part 2, Government in Exile, Jan. 18, 2013, https://happywarriordotme.wordpress.com/2013/01/18/the-wrong-lessons-from-newtown-part-2/.

[13] Brett J. Talley, A Call to Arms: It’s Time to Join the National Rifle Association, Government in Exile, Jan. 26, 2013, https://happywarriordotme.wordpress.com/2013/01/26/a-call-to-arms-its-time-to-join-the-national-rifle-association/.  

[14] Brett J. Talley, Immigration Reform, The Bitter Pill Republicans Must Swallow, Feb. 1, 2013, https://happywarriordotme.wordpress.com/2013/02/01/immigration-reform-the-bitter-pill-republicans-must-swallow/.  

[15] Brett J. Talley, Drone Attacks on American Soil Against American Citizens?, Government in Exile, Mar. 8, 2013, https://happywarriordotme.wordpress.com/2013/03/08/drone-attacks-on-american-soil-against-american-citizens/.  

[16] See, e.g., Brett J. Talley, Don’t Let ‘Never Trump’ Become ‘Ready for Hillary’, CNN, May 7, 2016, http://www.cnn.com/2016/05/07/opinions/never-trump-risks-electing-hillary-clinton-opinion-talley/index.html.  

[17] Brett J. Talley, Democrats: The Party Who Cried Racist, CNN, Dec. 1, 2016, http://www.cnn.com/2016/12/01/opinions/democrats-the-party-who-cried-racist-talley/index.html.  

[18] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=Brett+Talley (last visited Oct. 16, 2017).

[19] See Terris, supra n. 1.

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).