Brett Talley

President Trump nominated Brett Talley on September 7, 2017 to the United States District Court for the Middle District of Alabama. Talley is exceptionally young, like several of Trump’s judicial nominees, and he lacks significant legal experience. However, he has firmly established conservative political credentials, as a former writer for Mitt Romney’s 2012 presidential campaign, a former speechwriter for Sen. Rob Portman, and a blogger and political commentator.

Among the most notable writings on his blog are his strenuous arguments against gun safety measures, even in the immediate aftermath of the Aurora, Colorado and Newtown, Connecticut shootings. In the wake of the tragic mass shooting in Las Vegas, his views are especially disturbing and he should be questioned closely about them.

Alliance for Justice has prepared this brief fact sheet to highlight areas of Talley’s record in which we believe greater scrutiny by the Senate is warranted. This report does not attempt to analyze the entirety of his record.

Lack of Qualifications

• Talley was born in 1981. He has only been out of law school ten years. Not only that, he has less than three years of experience actually practicing law (one year as a junior associate in a law firm and two years in the Office of the Attorney General in Alabama) (excluding his current policy related job in the U.S. Justice Department). Perhaps most shockingly for someone nominated to be a trial court judge, he has never tried a case.
• Talley was clearly not nominated because he is a seasoned lawyer. Instead, it is clear Talley, a member of the ultraconservative Federalist Society, is being nominated because of his partisan loyalty and political, not legal, credentials. Indeed, he has spent more time as a political speechwriter (for Mitt Romney and Rob Portman) than practicing law. He is certainly better known for his political commentary (e.g. “Never Trump Republicans come on Home” and “Don’t Let ‘Never Trump’ become ‘Ready for Hillary’”) and blogging, at happywarriordotme, than for any legal accomplishments.

Hostility to Gun Safety

• The year 2012 saw the horrific tragedies in Aurora, Colorado, and Newtown, Connecticut. For Talley, what was tragic was not the loss of life, but that the President and others, including Republicans like Senator Pat Toomey (who joined with Senator Joe Manchin in introducing legislation after Newtown) responded to the tragedy by advancing common- sense gun safety measures. He wrote, “2012 was a bad year for those who value the time-honored right to bear arms. Between the fatal shootings in Aurura, [sic] CO and Newtown, CN [sic]—with several others spread throughout—it seems that the forces of gun control may finally pass new legislation designed to restrict gun ownership.”
• He also wrote: “Fortunately, there is a group dedicated to the protection of our Second Amendment Rights—the National Rifle Association. Today I pledge my support to the NRA; financially, politically, and intellectually. I ask you to do the same. Join the NRA. They stand for all of us now, and I pray that in the coming battle for our rights, they will be victorious.” Given this statement, how can Talley at a hearing credibly claim that he will be unbiased and be guided by the law, and not the political leanings of one interest group (a group he wants to “be victorious”)?
• His answer to Aurora and Newtown was that our nation needs more individuals in possession of guns.
  • He wrote: “It is a dereliction of our duty that we send our children to schools that have no security and no way to stop such events from happening. Certain members of the faculty should be armed. They should be trained in the use of a weapon, and they should receive extra pay for taking on this responsibility. If one of the teachers had been armed and properly trained in the use of a firearm at Newtown, more children would be alive today.”
  • He said it was “an outrage” that “these activists have exploited the tragedy in Connecticut for their own ends, and it is sad that the President has decided to forgo an opportunity to reform our gun control regulations, so many of which only burden law abiding citizens.”
• He wrote: “These politicians either do not know or do not care that an armed, responsible citizenry is the last and greatest bulwark against tyranny that a nation can have.” He also wrote, “[h]aving the right to bear arms is, in many ways, the ultimate right. It is action in a way that voting or speech is not, and it makes a mockery of the notion that the government has a monopoly on force. It is power, the kind ordinary citizens have not held during 99% of human history.”

Hostility to Reproductive Rights

• In an online commentary, Talley wrote that voters should support Trump “if you want justices who adhere to the Constitution, laws that respect unborn life.”

Hostility to Civil Rights Laws

• Talley has said that Jeff Sessions “would seem to be the perfect nominee” for Attorney General. Jeff Sessions, as Attorney General, has eroded LGBTQ rights, attacked voting rights, retreated from efforts to ensure police act constitutionally, defended the unconstitutional and discriminatory travel ban, reversed efforts to make the criminal justice system more just, and – in the most generous interpretation of events –at least misled the Senate Judiciary Committee regarding his contacts with Russia. To suggest that he is “the perfect nominee” calls into question Talley’s own commitment to civil rights.
• Talley wrote that in raising legitimate questions about Sessions’s commitment to civil rights, Democrats were “slandering” Jeff Sessions. And, he wrote: “But even if these accusations of racism — which Sessions has long disputed — were fair game in 1986, it borders on absurd that they are the basis for opposing Sessions now. Sessions’ detractors have presented not a shred of evidence from the past three decades that Sessions is a racist.” In fact, the Senate was presented with overwhelming evidence that Senator Sessions had a 30-year record of racial insensitivity, bias against immigrants, disregard for the rule of law, and hostility to the protection of civil rights.

Hostility to Environmental Laws

• Talley wrote: “During the Obama administration, the EPA became a lawless organ of federal power, divorced from the Congressional statutes that were meant to constrain it. If it is to be reformed, it will need the steady hand of someone who understands just how thoroughly it has gone astray. Enter Oklahoma Attorney General Scott Pruitt, a man who has spent the last six years pushing back on the EPA’s most egregious overreaches.”
• He also wrote: “And while Pruitt’s enemies would never admit it, in the long run his confirmation would be good for the environment.”

Praise for an Icon of Extremism

• In discussing President Trump’s potential nominee to the Supreme Court, Talley said, “the choice is not a particularly difficult one. Trump should nominate the first person he named the day Scalia died: Judge Bill Pryor of the 11th Circuit Court of Appeals, who is from my state of Alabama.”
• What does it say about Talley’s view of the law that he believed Judge Pryor should have been nominated to the Supreme Court?
  • Pryor characterized Roe v. Wade as “the worst abomination of constitutional law in our history.” On Roe, he also remarked that “[o]n January 22, 1973, seven members of [the Supreme Court] swept aside the laws of the fifty states and created—out of thin air—a constitutional right to murder an unborn child.” When asked about these statements by Senator Chuck Schumer at his confirmation hearings, who noted that his comments meant that Pryor considered Roe worse than Dred Scott, Pryor didn’t claim to have exaggerated or misspoken. Rather, he reaffirmed that these were his views.
  • Under Pryor’s leadership, Alabama was the only state to challenge the constitutionality of provisions of the Violence Against Women Act (United States v. Morrison). Pryor also fought to prevent women who were denied their rights to care for a sick child or dying parent from having remedies (Nevada Department of Human Resources v. Hibbs).
  • Pryor defended Alabama’s practice of handcuffing prison inmates to hitching posts in the hot sun if they refused to work on chain gangs or otherwise disrupted them. (Hope v. Pelzer). He also wrote an amicus brief in Atkins v. Virginia arguing that states should be able to execute the “mentally retarded.”
  • Lambda Legal concluded that Pryor was “the most demonstrably antigay judicial nominee in recent memory.” As a judge, in 2004, Pryor voted against reviewing a Florida law that banned gay couples from adopting children. In an amicus brief he filed in the case Lawrence v. Texas, 539 U.S. 558 (2003), Pryor wrote, “states should remain free to protect the moral standards of their communities through legislation that prohibits homosexual sodomy.”

Lack of Temperament Suitable for a Federal Judge

An important part of serving as a federal judge is to be open-minded, to hear both sides, and treat all litigants with respect. What is telling about Talley’s writings is how he demonstrably lacks this quality. He regularly demonizes persons who have different views on public policy, including ascribing bad and illicit motives to those who might disagree with him. Illustrative:

• He wrote: “The President and his democratic allies in Congress are about to launch the greatest attack on our constitutional freedoms in our lifetime. The coming fight over gun restriction is the latest battle in the long war that activists have raged over the last several decades against our Second Amendment rights. The object of that war is to make guns illegal, in all forms. In the world they imagine, only the state and its officers would be permitted to own and carry a weapon.”
• He also wrote: “As long as guns are legal, incidents like Newtown will continue to occur. Behind closed doors, many in the gun control movement readily admit that fact, and in reality, their goal is a United States where guns are illegal altogether.”
• He wrote: “The problem I have with the current gun control movement is that it is not playing straight with the American people and it is not negotiating in good faith. Many in the gun control lobby do not seek safe, responsible firearm ownership. They want to ban guns altogether.”
• He wrote: “In the President’s mind, and in the mind of liberals in Congress, there is no such thing as a good gun, and there is no such thing as a good gun owner.”
• He wrote, ignoring legitimate concerns regarding Jeff Sessions’s record: “Democrats aren’t attacking Sessions because they actually believe he is a racist. If that were true, Booker wouldn’t have been cozying up to him only a year ago. Rather, Democrats don’t like Sessions because he’s conservative. He’ll do things such as enforce our laws on immigration and illegal drugs, a dramatic change from Obama’s Department of Justice. But the left recognizes that the American people are actually pretty fond of the rule of law: Enter the race card.”

Finally, Talley wrote, “[t]o his credit and to the ultimate benefit of the nation, Trump has been far more conciliatory toward his erstwhile opponents than they would have been had Clinton won.” But President Trump has called for jailing Hillary Clinton. He has called United States Senators childish names: “Liddle Bob Corker;” “Little Marco,” “Lyin’ Ted,” “Pocahontas,” and “Cryin’ Chuck.” He has viciously attacked Senator Jeff Flake and Senator John McCain. He has threated the media with jail time and loss of broadcast licenses for reporting on him. He has encouraged private employers to fire individuals who criticize him. If Talley thinks this is “being conciliatory,” what should we expect from him in the courtroom?