A recent nominee to the federal bench, Brett Talley, has come under scurrilous attacks from the left and their fellow travelers in the anti-Trump movement. There are basically three attacks. 1) He isn’t qualified, 2) he was less than honest on a background investigation, and 3) he is nuts because he apparently believes in the paranormal. Let’s take these in descending order of nuttiness.
But Talley’s hobbies haven’t gotten much attention. And while there’s nothing wrong with writing horror novels, it is a bit bizarre that a man who spends his free time hunting ghosts is about to become a federal judge.
Talley has been a member of the Tuscaloosa Paranormal Research Groupand is the author of books like Haunted Tuscaloosa and That Which Should Not Be. And it’s clear that Talley would rather be writing horror novels and ghost hunting than be a judge. He said as much in a 2014 article from the Washington Post, back when he was Ohio Senator Rob Portman’s speechwriter.
The Post followed Talley into a cemetery where he showed a reporter how to “hunt for ghosts”:
Armed with just a voice recorder and flashlights, Talley’s move is to find graves that seem interesting and ask questions out loud in case a spirit wants to answer. Even in his off-hours, he is trying to channel someone else’s voice. But he seems almost to be doing this with a wink and a smirk. He knows it is absurd.
Apparently not absurd enough to stop doing it.
Seriously? This is a critique?
I’ve never gone on a ghost hunt but as a member of a religious sect founded upon belief in the supernatural (that would be Christianity) and where each Sunday we acknowledge God created a supernatural world as well as a natural world (“I believe in one God, the Father almighty, maker of heaven and earth, of all things visible and invisible”) I’m hard-pressed to see why this would be considered disqualifying. In the Bible itself you have Saul’s conversation with Samuel’s ghost (1 Samuel 28:11-20) and these nuggets from the Gospel:
Matthew 14:26, “When the disciples saw Him walking on the sea, they were terrified, and said, “It is a ghost!” And they cried out in fear.”
Mark 6:49, “But when they saw Him walking on the sea, they supposed that it was a ghost, and cried out.”
Luke 24:37, “But they were startled and frightened and thought that they were seeing a spirit.”
Luke 24:39, “See My hands and My feet, that it is I Myself; touch Me and see, for a spirit does not have flesh and bones as you see that I have.”
(Personally, I do believe in ghosts and I don’t believe in meddling with crap I don’t understand.) I don’t know if his beliefs in regard to ghosts are sincere or if he’s engaged in a form of theater for the those who do believe. If this worries you, I’d suggest you contact BBB or check his Yelp reviews. You can take it or leave it but it certainly has no greater value in determining his fitness for the bench than his shirt size, favorite color, or preferred pizza topping.
For the next two items, I’m going to draw on Ed Whelan who writes Bench Memos for National Review. Read his bio (at the last link) before continuing.
The New York Times complains today that Talley “did not disclose on publicly available congressional documents that he is married to a senior lawyer in the White House Counsel’s Office.”
1. One good reason for Talley not to have included that information on his Senate questionnaire response is that it is not in fact responsive to any of the questions posed.
Further, the Senate Judiciary Committee has long been content with a nominee’s general statement to evaluate potential conflicts as they arise. To cite just one example: When President Obama nominated Cornelia Pillard to the D.C. Circuit, Pillard didn’t bother to note that her husband David Cole frequently litigates in the D.C. Circuit, and no one faulted her for failing to identify the potential conflict. So why the double standard with Talley?
The article also states that Talley “did not mention his wife when he described his frequent contact with White House lawyers during the nomination process.” Perhaps that’s because Talley’s “descri[ption] of his frequent contact with White House lawyers” was limited to this:
On July 12, 2017, I interviewed with attorneys from the White House Counsel’s Office and the Office of Legal Policy. Since then I have been in contact with officials from the White House Counsel’s Office and the Office of Legal Policy.
Perhaps that’s because of the unsurprising fact that, as an Administration source confirms for me, his wife played no role in his nomination process.
He’s not qualified.
This is based on two parts. First, the American Bar Association rated him unqualified. So what? The ABA is a partisan organization that routinely hammers conservative jurists at confirmation hearings. This is not news. Back in 2001, one of the early acts of the Bush Administration was to remove the ABA from any role in evaluating judges. The Obama administration restored it as quasi-official rating group. And the Trump administration removed it. Whatever the ABA thinks, that thought has no official weight.
The second part is that his legal resume is scant with a lot of people screaming “he’s never tried a case.” Again, Ed Whelan:
For that reason, I would not quarrel with those who object to the nomination to the district court of a thirty-something who has essentially no trial experience and who has been out of law school less than eleven years. Indeed, those objections are all the more weighty when that person has been nominated to one of the most challenging district courts in the country.
So, yes, there was plenty of reason to object to President Obama’s nomination of Alison Nathan to a federal district judgeship on the Southern District of New York in March 2011. But somehow there wasn’t any uproar back then. The American Bar Association’s judicial-evaluations committee smoothed the way, as it abandoned its own stated criteria in giving Nathan a majority “qualified” (and minority “not qualified”) rating. And the Senate confirmed Nathan’s nomination on a party-line vote.
Things are very different with President Trump’s nomination of Brett Talley to a judgeship on the Middle District of Alabama (in his eleventh year out of law school).
There’s plenty of room to quibble over whether Nathan or Talley had greater experience. On the one hand, Talley’s two years as a clerk for a district judge gave him far greater exposure to the work of a federal trial court than Nathan’s four years as a back-office litigation associate. Further, in his two years as Alabama’s deputy solicitor general, Talley handled some of the most important litigation involving the state, including overseeing its participation in complex nationwide litigation in federal district and circuit courts. In addition to filing ten Supreme Court briefs, he also argued three appeals in the Eleventh Circuit and one in the state court of appeals. On the other hand, Nathan had more years of actual practice. (Some might also see her clerkship with Justice John Paul Stevens as a marker of exceptional quality; in this regard, I’ll note that folks whose judgment I trust tout Talley’s abilities as extraordinary.)
My point here, though, is not to argue that Talley is objectively more qualified for his nomination than Nathan was for hers. Nor will I argue here against those who regard both to have had a deficient level of trial experience. But (the ABA committee notwithstanding) I don’t think it plausible to maintain that the line between sufficient experience and deficient experience runs between Nathan and Talley. Nor would I foreclose the possibility with Talley, any more than others foreclosed it with Nathan, that extraordinary ability might well offset such a deficiency. In any event, the double standard on the Left is not something that should be tolerated or acquiesced in.
The “three years practicing law” attack is a deliberate construction to rule out his time spent as a clerk to two federal judges and as deputy solicitor general for Alabama.
In short, Talley is no less qualified for the bench than many other nominees, something the Senate Judiciary Committee knew.
(would that be Saint Jeff of Flake who is voting “yes?”)
Great news – I am proud to announce that three more Alabama district judge nominees were favorably reported out of the @SenJudiciary Committee today. Congratulations to Jeffrey Beaverstock, Emily Marks, and Brett Talley. Looking forward to their confirmation by the full Senate.
— Richard Shelby (@SenShelby) November 9, 2017
What makes Talley unique is that he’s a conservative who was nominated by Trump.