The headlines highlight the most easily digestible reason why a Trump nominee for a federal judgeship, already approved by the Senate Judiciary Committee on a party-line vote, is unqualified for the position.
The New York Times: Trump Nominee for Federal Judgeship Has Never Tried a Case
The Los Angeles Times: Trump judge nominee, 36, who has never tried a case, wins approval of Senate panel
Each of these stories pounds on one additional factor, that the ABA Standing Committee on the Federal Judiciary found Talley “unqualified.” And he is, most assuredly, unqualified. But not because an ABA committee said so.
Talley’s resume is easy to recite, although brevity in this instance may have nothing to do with wit.
According to his LinkedIn page, following his graduation from Harvard Law School in 2007, he appears to have worked as a clerk, as the deputy solicitor general for the Alabama attorney general and as a writer for two prominent politicians: first, as a senior writer for former Gov. Mitt Romney’s unsuccessful presidential campaign in 2012; and second, as a speechwriter for Sen. Rob Portman, R-Ohio, between 2013 and 2015.
This recitation is somewhat unfair to Talley, trivializing some accomplishments, such as two federal judicial clerkships following law school. He worked in the Alabama Attorney General’s office for a couple years, and now for DoJ since January. Talley’s is the resume for a senior associate position at Biglaw, and he would almost certainly get the job. It’s not a bad resume. It’s just not federal judge material.
The problem facing those who oppose Talley’s nomination is that there is no longer a ready means to explain why he’s unqualified. He never argued a motion, no less tried a case? Others, such as Obama nominee Nancy Freudenthal for the District of Wyoming bench, had never tried a case to a jury, yet Judge Freudenthal was confirmed 96-1 and is now the Chief Judge of the District.
And then there are the law professors. Ah, the law profs, whose experience tended to include a few years in a Biglaw library, if that. Talley has a grand total of three years of actual practice experience? Compare and contrast. Elena Kagan sits on the Supreme Court, even though the bulk of her experience is in the Academy.
Sure, she was the Obama administration’s Solicitor General, a post for which she was dubiously suited given that she had never argued before the Supreme Court before, but she held that post from 2009 to 2010 before being nominated to the Supreme Court. In fact, Justice Kagan’s legal practice career isn’t particularly different than Talley’s. From her judicial questionaire:
d. State the number of cases in courts of record you tried to verdict or judgment
(rather than settled), indicating whether you were sole counsel, chief counsel, or
I have never tried a case to verdict or judgment.
This is not to suggest that Kagan is unqualified,* but that the linchpin of never having tried a case is weak sauce.
Nor is the fact that Talley’s experience was limited solely to the prosecution side of the courtroom, had he ever been inside a courtroom, unusual. He’s never held the hand of a defendant facing life in prison? He’s never wiped the tears of a mother watching her child plead guilty to a crime he didn’t commit? Will the narrowness of his experience render him unique? Meet SDNY Judge Rich Sullivan, who missed the day they handed out empathy.
So what makes Brett Talley unqualified? It’s the package. He’s a legal kid, a babe in the legal woods. Born in 1981, a year before I graduated law school, he’s been admitted to practice ten years. Had he been in the trenches for all ten of those years, he still wouldn’t be qualified to serve as a federal district court judge. Nobody knows their ass from their elbow in so short a time. Nobody gains the breadth of legal, or human, experience without paying their lawyer dues. Regardless of the pieces that comprise the package, the sum total of the package is what matters. His package is almost empty.
His supporters, such as Chuck Grassley, chair of the Senate Judiciary Committee, have tried their utmost to sanitize Talley’s nomination.
Senator Charles E. Grassley, Republican of Iowa and the chairman of the committee, defended Mr. Talley’s qualifications. “Mr. Talley has a wide breadth of various legal experience that has helped to expose him to different aspects of federal law and the issues that would come before him,” he said in a statement.
Saying so don’t make it so, Chuck.
Mr. Grassley also cast doubt on the importance of the bar association’s rating. “Senators can decide for themselves if the A.B.A.’s metric of what makes a nominee qualified is proper in these cases,” he said.
This is where the important of having an honest broker comes into play. In other times, when the ABA had credibility as an overseer of judicial qualifications rather than defender of the progressive faith, its “unqualified” rating would have been enough to give the administration pause to pursue this nomination. Talley wouldn’t have gone to committee, thus forcing Chuck to have to utter such painful nonsense to cover the glaring hole in Talley’s readiness for the bench.
But now that the Senate committee has advanced the nomination to the full Senate, and this will be seen as a test of the majority party’s ability to seize the judiciary, the fact is that a nominee who might well be worthy of the bench in another ten, maybe twenty, years is likely to be confirmed by party-line vote for reasons having nothing to do with his qualifications. The senators don’t really care, unless one of them ends up standing in the well before a Judge Talley, which could happen.
Brett Talley is not qualified. Of that there is no doubt. It’s not because he’s politically horrible. It’s not because he never tried a case. It’s not because he’s only been on the prosecution side. It’s because he is still a decade or more away from having the experience necessary to be a judge. And there is no one who is trusted enough to just say so, and take the burden off the majority party for refusing to confirm a lawyer who just isn’t ready for the bench.
*Some self-serving scoundrels might contend that an appellate judge need not have trial experience, an assertion of utter silliness. Some might also contend that Kagan’s substantial academic writing and speaking are a substitute for trial experience, which is similarly silly.