Andrew Brasher – Nominee for the U.S. District Court for the Middle District of Alabama

Late last year, the Trump Administration suffered an unusual and embarrassing defeat when Alabama judicial nominee Brett Talley withdrew in the face of bipartisan opposition.  Among the many knocks against Talley were his youth and inexperience.  Now, the Administration has replaced Talley with Alabama Solicitor General Andrew Brasher, who is just as young, but brings a significantly greater amount of courtroom experience.

Background

Andrew Lynn Brasher was born in Milan, TN on May 20, 1981.  Brasher moved to Alabama to attend Samford University, a private Christian University in Homewood, where he graduated summa cum laude in 2002.[1]  Brasher went on to Harvard Law School, graduating cum laude in 2006.

Upon graduation, Brasher clerked for Judge William Pryor on the U.S. Court of Appeals for the Eleventh Circuit.[2]  He then joined the Birmingham office of Bradley Arant Boult Cummings LLP as an Associate.

In 2011, Brasher was appointed by Luther Strange, then the Attorney General of Alabama, to be Deputy Solicitor General.  Brasher served in that capacity until 2014 when he was appointed Solicitor General (working with Talley in the office).[3]  Brasher continues to serve in the office.

History of the Seat

Brasher 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.[4]  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.[5]

In September 2017, the Trump Administration nominated Talley to the court.[6]  Unfortunately, Talley’s nomination quickly drew criticism from Democrats for his youth and lack of experience.  Shortly after his nomination passed through the Judiciary Committee on a party-line vote, it became public that Talley did not disclose his marriage to Ann Donaldson, the chief of staff to White House Counsel Don McGahn in his paperwork.[7]  Soon after, news broke of undisclosed posts and comments written by Talley under a pseudonym,[8] including message board comments defending “the first KKK.”[9]  Facing increasing bipartisan pushback to Talley’s nomination, the White House agreed to withdraw Talley’s nomination.[10]

On December 9, 2017, Sen. Richard Shelby (R-AL) reached out to Brasher to schedule an interview for the Middle District vacancy.[11]  Shelby recommended Brasher to the White House in late December.  Brasher was officially nominated on April 10, 2018.

Legal Experience

Setting aside his clerkship, Brasher has had two main legal jobs: as an associate at Bradley Arant; and as Deputy Solicitor General and Solicitor General of Alabama.  During his time at Bradley Arant, Brasher worked in complex civil litigation, including product liability cases.  At the firm, he notably represented Republican Gov. Bob Riley in defending a controversial line item veto (later overturned by the Alabama Supreme Court).[12]

As the Deputy Solicitor General and Solicitor General of Alabama, Brasher defended Alabama laws and convictions before state and federal courts.  As such, Brasher argued three cases before the U.S. Supreme Court.

In McWilliams v. Dunn, Brasher defended the imposition of the death penalty on James McWilliams, despite the latter’s alleged serious mental health issues.[13]  McWilliams argued that Supreme Court precedent required him to have access to a defense expert to provide evidence of mental incapacity, which Brasher disputed.  The Supreme Court ultimately sidestepped the question of whether McWilliams was entitled to a defense expert, ruling instead that the judge erred in denying any expert examination of McWilliam’s mental state.[14]

In Alabama Legislative Black Caucus v. Alabama, Brasher defended the constitutionality of Alabama’s state legislative districts.  The Supreme Court ultimately reversed the lower court ruling upholding the districts, suggesting that many of whom constituted racial gerrymanders.[15]  Additionally, in Alabama Department of Revenue v. CSX Transp., Inc., Brasher defended an Alabama tax on diesel for rail carriers while exempting competitor industries against charges that it was discriminatory.  The Court ultimately held that Alabama had violated federal law.[16]

In addition to his Supreme Court work, Brasher has also litigated extensively in Alabama state and federal courts.  Notably, Brasher defended the constitutionality of “admission privilege” requirements for abortion providers in Alabama, struck down by Judge Myron Thompson, and ultimately enjoined after the Supreme Court struck down a virtually identical law in Whole Woman’s Health.[17]  Brasher also successfully defended Alabama’s ban on PAC-to-PAC transfers against allegations that it violated the First Amendment.[18]

Writings and Speeches

Setting aside his official positions as Alabama Solicitor General, Brasher had written and spoken extensively on legal and political issues.

 

Federal Regulation

On February 4, 2017, Brasher served on a Federalist Society panel titled “Combating Federal Overreach.”[19]  The panel consisted of Brasher and the Solicitor Generals of Florida, West Virginia, and Texas, moderated by Allen Winsor, a former Florida Solicitor General who is now up for a federal judgeship.  On the panel, Brasher discussed the litigation over the EPA’s control of “navigable waters” as defined by the Clean Water Act and interpreted by the Army Corps of Engineers.  Brasher criticizes the rule as overly broad and beyond the statutory intent of Congress.  Later in the discussion, Brasher also criticized local regulations, noting:

“…oftentimes, you actually see a locality within a state that’s really, sort of, in league with the federal government against the state’s authority.”[20]

Charitable Donations

On July 21, 2015, Brasher moderated a debate titled “Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations.”  The discussion was between Dr. Craig Holman from Public Citizen and Hans Von Spakovsky of the Heritage Foundation and discussed IRS interference in not-for-profits and political organizations.[21]

Same-Sex Marriage

In 2015, while defending Alabama’s ban on same-sex marriage before the U.S. Supreme Court, Brasher wrote an article on the subject on SCOTUSBlog.[22]  In the piece, Brasher argues that the Supreme Court “should at least reject the argument that these laws serve no legitimate state interest.”[23]  Brasher suggests that states maintain a legitimate interest in limiting marriage to opposite sex couples, noting:

“I hope that . . . [the Court] does not malign the majority of voters in a majority of states as irrationally prejudiced.”[24]

Death Penalty

Shortly after the Supreme Court narrowly upheld Oklahoma’s lethal injection procedure in Glossip v. Gross, Brasher authored an article in SCOTUSBlog supporting the decision.[25]  In the article, Brasher argues that disputes about the method of administering the death penalty are actually about the legality of the penalty itself, stating:

“Why pretend these disputes are about a particular method of execution when they clearly go to the viability of capital punishment itself?”[26]

However, Brasher also acknowledges some of the arguments of death penalty opponents, noting:

“It is hard to argue that the death penalty is a strong deterrent when capital cases take twenty-five years to process.”

Redistricting

Shortly after the U.S. Supreme Court struck down North Carolina’s redistricted maps in Cooper v. Harris, Brasher published an article critical of the decision.[27]  Brasher suggests that the decision would lead to more judicial intervention in redistricting without providing adequate standards for them to do so.  Brasher also suggests that courts impose a requirement on plaintiffs to offer a map that would meet the partisan goals of the legislature.[28]

Political Activity

Brasher, a Republican, has worked as a volunteer on the 2010 campaigns of Luther Strange to be Attorney General and of Bradley Byrne (now a U.S. Representative) to be Governor of Alabama.[29]  Brasher also served on the Trump Transition Team, coordinating criminal justice policy with the incoming Administration.[30]

In addition, Brasher donated $300 to the Alabama Republican Party in 2015, his only notable political contribution.[31]

Overall Assessment

While Brasher is the exact same age as Brett Talley, he approaches the confirmation process with several key advantages that the latter did not have.

First, Brasher has served as Solicitor General, a position that has given him significant litigation experience, including three Supreme Court oral arguments.  In recognition of this fact, a substantial majority of the American Bar Association Standing Committee on the Judiciary rated Brasher “Qualified” for the judicial appointment, with a minority finding him “Well Qualified.” (In comparison, the Committee had unanimously found Talley “Not Qualified.”)

Second, Brasher has not, to our knowledge, ever blogged, anonymously or otherwise, on his personal political views.  Rather, his writings, while revealing a conservative judicial philosophy, focus on interpreting and understanding Supreme Court precedent.

That being said, Brasher will still likely attract significant opposition to his confirmation.  First, having defended many controversial positions as Solicitor General (and having lost repeatedly before the Supreme Court), Brasher will no doubt be called upon to answer for the stances he took.  Second, Brasher’s involvement in the Federalist Society will likely draw criticism, given much scrutiny over the conservative organization’s outsized influence over Trump’s court nominees.  As such, given Brasher’s background and expected longevity on the bench, Brasher will likely be opposed by most Democrats.  Nevertheless, unlike his predecessor, Brasher remains a favorite to be confirmed.


[1] Sen. Comm. on the Judiciary, 115th Cong., Andrew Brasher: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] 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.  

[5] 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/.  

[6] 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).    

[7] Matt Apuzzo and Michael S. Schmidt, Trump Judicial Pick Did Not Disclose He is Married to a White House Lawyer, N.Y. Times, Nov. 13, 2017, https://www.nytimes.com/2017/11/13/us/politics/trump-judge-brett-talley-nomination.html?_r=0.  

[8] Zoe Tillman, A Trump Judicial Nominee Appears to have Written About Politics on a Sports Website and Didn’t Disclose It, Buzzfeed News, Nov. 13, 2017, https://www.buzzfeed.com/zoetillman/a-trump-judicial-nominee-appears-to-have-written-about?utm_term=.lfJaLQm8G#.atjgYrER6.

[9] Mark Joseph Stern, Trump Judicial Nominee Brett Talley Appears to Have Defended “the First KKK” in Message Board Post, Slate, Nov. 15, 2017, http://www.slate.com/blogs/the_slatest/2017/11/15/trump_nominee_brett_talley_appears_to_have_defended_the_first_kkk.html.  

[10] Zoe Tillman, The White House Says Two of Trump’s Controversial Judicial Nominees Won’t Go Forward, BuzzFeed News, Dec. 12, 2017, https://www.buzzfeed.com/zoetillman/trump-is-suddenly-facing-a-significant-republican-roadblock?utm_term=.bo9w8BdnA#.siJmaqzpA.  

[11] See Brasher, supra n. 1 at 40-41.

[12] McWilliams v. Dunn, 137 S. Ct. 1790 (2017).

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

[14] See id.

[15] See 135 S. Ct. 1257 (2015).

[16] 135 S. Ct. 1136 (2015).

[17] See Planned Parenthood Southeast v. Strange, 2:13cv405-MHT (M.D. Ala.).

[18] Alabama Democratic Conference v. Attorney Gen., 838 F.3d 1057 (11th Cir. 2016).

[19] Andrew Brasher, Combatting Federal Overreach (Feb. 4, 2017) (video available at https://www.youtube.com/watch?v=s-71pu5xnOA).

[20] Id. at 1:19:45.

[21] Andrew Brasher, Fat Cats and Philanthropists: How the IRS Governs Your Charitable Donations (July 21, 2015) (video available at https://www.youtube.com/watch?v=_1tFCp-rYGQ).

[22] Andrew Brasher, Good Faith and Caution, Not Irrationality or Malice, SCOTUSBlog, Jan. 16, 2015, http://www.scotusblog.com/2015/01/symposium-good-faith-and-caution-not-irrationality-or-malice/.

[23] See id.

[24] Id.

[25] Andrew Brasher, The Death Penalty Lives to Fight Another Day, SCOTUSBlog, June 29, 2015, http://www.scotusblog.com/2015/06/symposium-the-death-penalty-lives-to-fight-another-day/.  

[26] Id.

[27] Andrew Brasher, A Recipe for Continued Confusion and More Judicial Involvement in Redistricting, SCOTUSBlog, Mar. 23, 2017, http://www.scotusblog.com/2017/05/symposium-recipe-continued-confusion-judicial-involvement-redistricting/.  

[28] Id.

[29] See Brasher, supra n. 1 at 20.

[30] See id.

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).