Andrew Brasher

On November 6, 2019, President Trump announced his intent to nominate Andrew Brasher to the United States Court of Appeals for the Eleventh Circuit.  Brasher is nominated to replace George H.W. Bush appointee Edward Carnes, and if confirmed would be the sixth Trump nominated judge to the thirteen-person Eleventh Circuit. With the recent confirmations of Robert Luck and Barbara Lagoa, there are now seven Republican appointed judges and six Democratic appointed judges on the court.

Brasher is just 38 years old. He has only been a district court judge for six months. In that time, he has presided over just three trials that have gone to judgment; none of which were criminal matters. He has not written a published decision or an opinion concerning significant constitutional issues.

In other words, it is clear that Brasher was not nominated because of his long career as a lawyer or his experience as a judge. He was nominated because he will be a reliable vote on the bench to advance ultraconservative policies. In his short career as a lawyer, Brasher fought against voting rights, rights for women, communities of color, and the LGBTQ community and zealously worked to dismantle consumer, worker, and environmental protections.

Throughout his career, Andrew Brasher has advocated for ideologically extreme positions and his record suggests that he will not be a neutral and fair-minded judge. For these reasons, Alliance for Justice strongly opposes his confirmation to a lifetime seat on the Eleventh Circuit.

Alliance for Justice also compiled this early look at Brasher’s record when he was nominated to the District Court for the Middle District of Alabama in 2018. 

More on Brasher

Andrew Brasher Background Report

AFJ Opposes Andrew Brasher

April 30, 2019

In the News

Trump is elevating judges who could gut the Voting Rights Act

February 12, 2020

Press Release

Senate Republicans Eschew Democracy with Latest Judicial Confirmation

February 11, 2020

Press Release

Senate Republicans Double Down On Compromising Democracy

February 5, 2020

Press Release

Brasher Would Gut Voting Protections on the 11th Circuit

January 7, 2020

In the News

We can’t afford a voting rights foe on the 11th circuit

February 7, 2020

In Alabama and across the country, Andrew Brasher,
Donald Trump’s nominee to the United States District Court for the Middle
District of Alabama, has fought against rights for women, communities of color, and LGBTQ communities, as well as reproductive, consumer, worker, and environmental protections. Brasher, Alabama’s Solicitor General, has a long record of affiliations with far-right groups, and has spoken 16 times before the Federalist Society and 3 times before the Koch-backed and Scott Pruitt-led “Rule of Law Defense Fund.”

Reproductive
Rights

Brasher is currently defending an unconstitutional law that would allow a judge to appoint an attorney for a fetus and the DA to call witnesses to testify regarding a minor’s maturity. He has defended other unlawful anti-choice policies, including laws requiring abortion providers to have admitting privileges at nearby hospitals, restricting where facilities that provide abortions can be located based on proximity to schools, and “effectively criminaliz[ing] the most common method of second-trimester abortions.” In 2014, Brasher, on behalf of the Attorney General, told a crowd, “The ACLU and Planned Parenthood want a fight and we will give them one.” Brasher challenged the contraceptive mandate in the ACA, and, in his personal capacity, even questioned the validity of Planned Parenthood v. Casey.

Civil
Rights

Brasher filed an amicus brief in
Shelby County v. Holder that
supported eroding the Voting Rights Act, defended Alabama’s
felon anti-voter law that, according to one study, disenfranchises over
286,000 Alabamians, and supported an
Arizona law, rejected by the Supreme Court, requiring voters to show proof of
citizenship before voting. Brasher has a history of defending unconstitutional racial
gerrymanders in Alabama and in Virginia. He wrote in
his personal capacity criticizing the Supreme Court’s efforts to correct racial
gerrymanders.

Brasher filed an amicus brief in support of a Florida law mandating universal drug testing for TANF applicants – an unconstitutional law that would have made low income families pay for drug tests, and that the Eleventh Circuit found stripped away the “legitimate expectations of privacy” “by virtue of [their] poverty.” Brasher has also attacked LGBTQ rights, filing a brief opposing marriage equality in Obergefell, defending Alabama’s ban on marriage equality, and donating to the political campaign of a judge who supported conversion therapy.

Death
Penalty and Criminal Justice

Brasher
repeatedly defended death
sentences that were struck down by the courts, including Florida’s unconstitutional law
that allowed judges to overrule juries and impose the death penalty. He
sought the death penalty for a defendant with mental illness despite
the state’s failure to provide sufficient access to a competent psychiatrist as
required under federal law, and also advocated
for the position that
children can be sentenced to life in prison with no possibility of parole.

Worker and
Consumer Protections

Brasher defended an
Alabama law retaliating against the Alabama Education Association by
restricting its members’ ability to pay dues to the Association unless it
stopped engaging in any political activity. He has repeatedly opposed the
right of individuals to band together to hold corporations accountable, and
also joined Scott
Pruitt and Texas Governor Greg Abbott in challenging the constitutionality of
the Dodd-Frank Act.

Environment

Brasher gave two speeches criticizing the Clean Water Rule – a common sense safeguard that protects America’s streams, wetlands, and safe drinking water – and served as the lead attorney for Alabama in attempting to block the Rule. Brasher has also attacked protections for endangered species.

On
November 6, 2019, President Trump announced his intent to nominate Andrew Brasher to the United States Court
of Appeals for the Eleventh Circuit.  Brasher is nominated to replace George H.W.
Bush appointee Edward Carnes, and if confirmed would be the sixth Trump
nominated judge to the thirteen-person Eleventh Circuit. With the recent
confirmations of Robert Luck and Barbara Lagoa, there are now seven Republican
appointed judges and six Democratic appointed judges on the court.

Brasher
is just 38 years old. He has only been a district court judge for six months. In
that time, he has presided over just three trials that have gone to judgment;
none of which were criminal matters. He has not written a published decision or
an opinion concerning significant constitutional issues.

In
other words, it is clear that Brasher was not nominated because of his long
career as a lawyer or his experience as a judge. He was nominated because he
will be a reliable vote on the bench to advance ultraconservative policies. In
his short career as a lawyer, Brasher fought against voting rights, rights for
women, communities of color, and the LGBTQ community and zealously worked to
dismantle consumer, worker, and environmental protections.

Alliance
for Justice strongly opposes Brasher’s confirmation.

BIOGRAPHY

Andrew
Brasher received a degree from Samford University and J.D. from Harvard Law
School. Following law school, he clerked for Judge William H. Pryor Jr. on the
Eleventh Circuit. He then spent four years in private practice at a firm in
Birmingham, Alabama. From 2011 to 2019, he worked in the Alabama Attorney
General’s office, first as Deputy Solicitor General and then, for the last five
years, as chief Solicitor General for the state. In January 2019, President
Trump nominated him to serve as district judge for the Middle District of Alabama
and, in May 2019, the Senate confirmed him.

In
his prior nominations hearing, Senator Richard Blumenthal asked Brasher about
deeply troubling positions he advocated for as Solicitor General of Alabama,
including those involving civil rights, women’s reproductive health, and gun
safety. Brasher responded that he was merely an “advocate for the state and its
agencies,” and attempted to distance himself from his attacks on critical
constitutional rights and legal protections. But, as Chuck Grassley said in
opposing Caitlin Halligan, then Solicitor General of New York, to be a judge on
the D.C. Circuit, “[s]ome of my colleagues have argued that we should not
consider this aspect of Halligan’s record, because at the time she was working
as the Solicitor General of New York. But, no one forced Ms. Haligan to approve
and sign this brief.” As Ted Cruz stated in opposing Trump nominee Mark Bennett
because of Bennett’s work as Hawaii Attorney General, “[Bennett’s] record as
Attorney General of Hawaii, I believe, represents an advocacy position that is
extreme.” Similarly, the record Brasher established in Alabama “represents an
advocacy position that is extreme.”

Finally,
Brasher has a long record of affiliations with far-right groups. As a state
official, he coordinated his legal strategy with the Beckett
Fund and the Alliance
Defending Freedom. Both groups
are virulently opposed to LGBTQ rights and have been labeled
hate groups by the Southern Poverty Law Center (SPLC).He has spoken 16 times
before the Federalist Society (which he joined in law school) and three times
before the Koch-backed Rule of Law Defense Fund, a partisan organization founded to advance conservative policy goals
among Republican attorneys general and led by former EPA Administer Scott
Pruitt.

VOTING
RIGHTS

Brasher
has a disturbing record of eroding the voting rights of persons of color. He
filed an amicus brief in Shelby County v. Holder that supported gutting the
Voting Rights Act (VRA) on the grounds that the issues that had led to the need
for the law had “faded away.” The Shelby County decision had struck down
the preclearance requirement under the VRA, which required certain states with
a history of voter suppression to receive approval from the Justice Department
or court before implementing changes to their voting laws. Shortly after the Court’s
decision, Alabama passed a strict voter ID law, despite evidence that this would disproportionately burden black communities in the
state. As Solicitor General of Alabama, Brasher also defended the state’s felon anti-voter law that, according to one study, disenfranchised over 286,000 Alabamians, more than half of whom
were black. He supported an Arizona law, rejected by the Supreme Court, that would have required voters to show
proof of citizenship before voting. Brasher also has a history of defending
unconstitutional racial gerrymanders in Alabama
and in Virginia and, in his personal capacity, has criticized the Supreme Court’s efforts to remedy racial gerrymanders. He
complained that the Supreme Court had created “a low bar for plaintiffs to show
racial predominance.”

In
the Alabama gerrymandering case, Brasher argued that Alabama’s consideration of
race in redrawing legislative districts was constitutional because race was not
the predominant factor. He also argued that the very same Voting Rights Act he
helped gut in Shelby County required Alabama to racially gerrymander the
state. U.S. District Court Judge Myron Thompson, who heard the challenge, called
this reliance on the Voting Rights Act a “cruel irony.” Judge Thompson noted
that, even as Alabama sought to gut Section 5, it was “relying on racial
quotas… and seeking to justify those quotas with the very provision it was
helping to render inert.”

The
Supreme Court rejected Brasher’s position in 2015. It held
that “there is strong, perhaps overwhelming, evidence that race did predominate
as a factor” when Alabama’s legislature drew the boundaries. On remand, George
W. Bush appointee William Pryor authored an opinion
ruling that 12 of Alabama’s legislative districts were unconstitutional because
the legislature relied too heavily on race in drawing their boundaries.

REPRODUCTIVE
RIGHTS

Like
other Trump nominees, Brasher meets President’s Trump’s litmus test of hostility to Roe v. Wade. In 2014, Brasher, on behalf of
the Alabama Attorney General, told
a crowd, “The ACLU and Planned Parenthood want a fight and we will give them
one.” In his personal capacity, Brasher has questioned the validity of Planned Parenthood v. Casey, stating that
it was “an uncertain area of the law [and] it’s not exactly clear what the
standard should be.”

Brasher
has defended unlawful anti-choice policies, including an unconstitutional law that would allow a judge in a judicial
bypass proceeding to appoint an attorney for a fetus, the district attorney to
testify to whether the minor was mature enough to make the decision to have an
abortion, and the woman’s parents to be a party to the case. As made clear by
the Supreme Court, states that have parental consent statutes must allow a
minor to obtain a court order to bypass her parent’s or guardian’s consent.
Alabama’s law, however, would have turned judicial bypass proceedings into an
adversarial proceeding where the interests of the fetus, the minor’s parents,
and the state could all be wielded against the constitutional rights of a
woman.  A federal judge struck down the law, writing “the judicial bypass option is rendered
meaningless if, as in Alabama’s bypass statute – which has no counterpart in
any other state bypass law – parents or legal guardians can participate as
parties under some circumstances, and if there are insufficient safeguards to
protect the anonymity of the minor.”

Brasher
also defended laws requiring abortion providers to have admitting privileges at nearby
hospitals, restricting where facilities that provide abortions can be located, and
“effectively criminaliz[ing] the most common method of second-trimester
abortion.”

He
also challenged the contraception coverage accommodation of the Affordable Care
Act. He authored a comment letter in which he tailored his messaging to “the public relationships strategy of the Beckett
Fund and the Alliance Defending Freedom.” In addition, he authored a brief arguing
that the accommodation – which permitted religious nonprofits to opt out of the
contraception insurance coverage requirement by signing a form objecting to the
requirement and sending it to a third-party provider – was a violation of
religious freedom. A district court rejected his argument, and the Eleventh
Circuit agreed, writing “[w]e
reject the plaintiffs’ claims because we conclude that the regulations do not
substantially burden their religious exercise and, alternatively, because (1)
the government has compelling interests to justify the accommodation, and (2)
the accommodation is the least restrictive means of furthering those interests.
“

CIVIL
RIGHTS

Brasher
filed an amicus brief in support of an unconstitutional Florida law mandating that
applicants receiving Temporary Assistance for Needy Families (TANF) must pay
for their own drug tests A study
in thirteen states showed that less than 1% of people who were forced to submit
to drug tests under such laws tested positive for drugs. Moreover, it had the
effect of stigmatizing low-income people by suggesting that people who need
federal assistance are more likely to use drugs. The Eleventh Circuit struck
down the law, finding
that it stripped away the “legitimate expectations of privacy” of low-income
families “by virtue of [their] poverty.”

Brasher
was also involved in a lawsuit arguing that it was unconstitutional for the Census
Bureau to count non-citizens as part of the decennial census, consistent with
the Trump Administration’s goal of undercounting immigrants. Brasher said
that he “discussed the case with employees of the Alabama Attorney General’s
Office” and met with the Congressman who is a co-plaintiff in the lawsuit.

Brasher
also signed
a brief urging the Supreme Court to review the Eleventh Circuit’s unanimous
decision to strike down a highly controversial immigration law. Among other
things, the Alabama law
required the detention of any person stopped by the police for any reason who
could not provide documentation that they were lawfully in the country;
required that public schools determine students’ citizenship status; prohibited
courts from enforcing contracts with undocumented immigrants if the other party
knew (or should have known) the immigrant’s status; made it a crime to
knowingly rent housing to undocumented immigrants; and made it a crime to
knowingly “transport” an undocumented immigrant (i.e., drive them anywhere).

Most
recently, at his district court nomination hearing, Brasher was unwilling to
say whether he believed Brown v. Board of Education was correctly
decided. Whereas some Trump nominees have praised the decision, his refusal to
say if he agreed with one of the most important civil rights cases in American
history clearly demonstrates Brasher’s hostility to civil and human rights.

LGBTQ
RIGHTS

Brasher
has a record of opposing LGBTQ rights. He filed
an amicus brief opposing marriage equality in Obergefell, in which he
argued that marriage is not a fundamental right and that bans on same-sex
marriage were lawful because the government has a legitimate state interest in
keeping children with both of their biological parents. He wrote that “Sexual
relationships between men and women – and only such relationships – have the
ability to provide children with both their biological mother and their
biological father in a stable family unit.” He also wrote, “Every child has an
inborn nature that joins together the natures of two adults, and the child’s
biological parents are uniquely positioned to show the child how to recognize
and reconcile these qualities within herself.” This theory has been widely debunked by studies that show no difference in outcomes for children who
are raised by same-sex couples.

Brasher
also led
other states in filing an amicus brief in a case over whether a photography
company violated a New Mexico antidiscrimination law by refusing to photograph
a same-sex wedding. The brief argued
that the photographer should be able to refuse to provide her services to a
same-sex couple based on her personal opposition to same-sex marriage.

DEATH
PENALTY AND CRIMINAL JUSTICE

While
Solicitor General of Alabama, Brasher repeatedly defended death sentences that were struck down by the courts. In one
instance, he sought
the death penalty for a defendant with mental illness after denying him
sufficient access to a competent psychiatrist as required under federal law.
The Supreme Court found the states’ actions unconstitutional and struck down
the sentence. In another instance, Brasher filed
an amicus brief in support of a Florida law that allowed judges to overrule
juries and impose death penalties, in which he argued that “Judicial sentencing
improves the general deterrent effect of capital punishment.“ He also advocated for the position that children can be sentenced to life in prison
without possibility of parole.

WORKERS
& CONSUMER PROTECTIONS

Brasher
has worked to diminish the power and leverage of unions. As Solicitor General,
he defended an Alabama law that retaliated against the Alabama Education
Association by restricting its members’ ability to pay dues to the association
unless it stopped engaging in any political activity.

Brasher’s
record on consumer protections is equally troubling. He has repeatedly demonstrated that he is far more interested in protecting
corporations from litigation than making it possible for individuals to hold
big businesses accountable for injuries to consumers. In a case that involved a
multi-million dollar company that had produced false consumer reports, Brasher filed
an amicus brief that advocated for making it harder for people to band together
in a class action in order to sue corporations that had injured them. Despite
their importance, Brasher argued that “abusive” class actions result in
“firm-killing damages.”

Brasher,
joining Scott Pruitt and Texas Governor Greg Abbott, also sued
to invalidate the Dodd-Frank Act. His brief asserted that the Consumer
Financial Protection Bureau unconstitutionally vested power in a single
director rather than a board, that its mandate violated the nondelegation
doctrine by lacking an intelligible principle, and that the circumstances of
the director’s recess appointment violated the Appointments Clause. The
Dodd-Frank Act has served a vital role in protecting consumers since the 2008
financial crisis. Brasher’s hostility towards this important legislation
demonstrates his disdain for regulations designed to protect the lives of
everyday people.

ENVIRONMENT

In
North Dakota v. EPA, Brasher served
as the lead attorney for Alabama in a lawsuit that sought to invalidate the
Obama Administration’s expansion of the Clean Water Act (CWA). The EPA
announced in 2015 that it was broadening the definition of “Waters of the
United States” so that more bodies of water were protected by the CWA. The expansion
only affected around 3%
of the nation’s waterways; however, the lawsuit claimed that the new regulation
was a gross overreach of government power. The purpose
of the rule was to protect vital streams and wetlands that provide drinking
water for over 117 million Americans, filter pollution, and reduce the impacts
of flooding and erosion. In addition to his lawsuit, Brasher gave two
speeches criticizing the Clean Water Rule, one of which was for the Yale
Law School chapter of the Federalist Society.

Brasher
has also attacked protections for endangered species. As Solicitor General, he filed
a brief on behalf of Alabama and 17 other states that argued that the Fifth
Circuit’s understanding of what constitutes “critical habitat” under the Endangered
Species Act was overly broad. His brief argued against protecting land that is
necessary to support species that are facing extinction on the grounds that
doing so “almost always results in a lost economic opportunity.” He filed
another amicus brief in a similar case related to the Ninth Circuits reading of
“critical habitat,” in which he argued that “the Ninth Circuit’s decision gives
the [U.S. Fish and Wildlife] Service unfettered power to declare areas critical
habitat.”

GUN
SAFETY LAWS

While
Solicitor General, Brasher also filed amicus briefs challenging gun laws that
were passed in New York and Connecticut. In the aftermath of the Sandy Hook Elementary School shooting,
which took
the lives of 20 children and 6 adults, both states banned semiautomatic
firearms as part of a broader movement to prevent mass shootings. Brasher
submitted briefs in lawsuits challenging the new laws, arguing that it should
be easier to overturn restrictions on gun possession in court, and soliciting
other states to sign on. Brasher also argued that “studies show that the
federal ‘assault weapons ban’ had no measurable effect on gun violence.”  In fact, multiple studies have shown that there were fewer mass shootings
while the Assault Weapons Ban was in effect, and that there were significantly
more after it expired.

CONCLUSION

Throughout
his career, Andrew Brasher has advocated for ideologically extreme positions
and his record suggests that he will not be a neutral and fair-minded judge.
For these reasons, Alliance for Justice strongly opposes his confirmation to a
lifetime seat on the Eleventh Circuit.