Brett Talley, who Donald Trump nominated to serve on a federal trial court in Alabama, is a 36-year-old author of Lovecraftian horror novels who’s held a number of political jobs, including a rapid response position on Gov. Mitt Romney’s presidential campaign and a speechwriter job with Sen. Rob Portman (R-OH). He’s also spent a handful of years working as a lawyer.
Mr. Talley has never tried a case in his life. He is, however, married to White House Counsel Donald McGahn’s chief of staff — a fact that Talley failed to disclose to the Senate on forms where he is supposed to identify any family members who are “likely to present potential conflicts of interest.”
Should he be confirmed, in other words, Talley would be the Betsy DeVos of the judiciary — an appointee who has, at times, traveled in the same circles as individuals who would be qualified to hold high office, but who is not the least bit qualified to hold the job Trump selected for him. His nomination was advanced by the Senate Judiciary Committee Thursday on a party-line vote.
The Senate has already demonstrated that it won’t stand in the way of judicial nominees who hold outlandish ideological views. Last July, it confirmed Judge John Bush, an attorney and right-wing blogger, to a federal appeals court on a party-line vote. This, despite the fact that Bush published blog posts that appeared to advocate the use of deadly force against Democrats who commit minor property crimes. Bush used a derogatory slur against gay people in a 2005 speech to a private club. And he even appeared to flirt with birtherism.
Yet, while Bush’s political views spanned the gamut from offensive to downright goofy, he was also conventionally qualified for an appellate judgeship — Bush was a partner at a Louisville law firm and was considered one of the city’s top lawyers. Bush likely received the nomination, at least in part, because he’d worked with Senate Majority Leader Mitch McConnell (R-KY) to attack campaign finance regulations.
Talley has his own share of dubious ideological views, but what sets him apart from Bush and many other Trump nominees with a record of controversial opinions is that he lacks many of the qualifications a trial judge needs to do their job competently. Talley received a rare “not qualified” rating from the American Bar Association.
Moreover, Talley’s lack of experience is likely to be a particular liability because he was nominated to sit on a trial court. Though appellate judges are considered to be more prestigious and sit on panels that have the power to reverse trial judges’ decisions, trial judges often have a much more difficult job. Appeals courts answer discrete legal questions after reading extensive briefing on the issue. Trial judges, by contrast, have to manage trial schedules, make rulings on the fly, and control what can become an unruly courtroom.
Did a prosecutor ask an inappropriate question of a potential juror? If the trial judge doesn’t react right away, the entire trial might be thrown out on appeal. The same can be true if a judge lacks fluency with the Federal Rules of Evidence. Or if they make the wrong split-second decision when an attorney raises an objection. It’s a tough job, riddled with traps for the unwary. And it’s difficult to imagine someone who has never tried a case before performing it well, or even adequately.
If Talley is confirmed, the likely result is going to be a lot of frustrated litigants forced to retry cases due to Talley’s amateur mistakes. Lawyers will rack up legal fees as trials are argued a second time. Appellate judges will grow frustrated policing Talley’s rulings. Some people may even be sent to prison without lawful grounds to convict.
Nevertheless, it is far from clear that enough Senate Republicans will oppose Talley to prevent him from becoming a judge.