Editorial: Bad Process Could Bring Bad Judges

Monday, November 27, 2017

Brett Joseph Talley has written horror novels and investigated ghosts in his spare time, but he has never tried a case or argued a motion in federal court. Yet President Donald Trump has nominated him for a lifetime appointment as a judge on the U.S. District Court for the Middle District of Alabama.

Talley is an extreme example of the Senate Judiciary Committee’s willingness to push forward with even the most controversial of Trump’s judicial nominees. Both Democrats and Republicans have contributed to the descent of the judicial confirmation process into a politicized affair. But committee Chairman Charles Grassley, R-Iowa, is now stripping away the few remaining guardrails.

Talley’s paranormal hobbies are less concerning than his contentious political blogging, the fact that the American Bar Association unanimously found him unqualified — and his failure to inform the Senate both of his wife’s job with White House Counsel Donald McGahn and of numerous political comments he wrote on a sports website. Talley’s Alabama judgeship might not overlap much with his wife’s work in Washington, and it’s true that an Internet comment isn’t as significant as a blog post or a law review article. But at least two of his comments were edited on the same day that he met with Alabama senators to discuss his nomination — suggesting that Talley hadn’t forgotten about his posts but rather chose not to disclose them. Taken together with the rest of Talley’s record, this is one more sign that he is not ready for the bench.

Then there’s Thomas Farr, Trump’s nominee to the U.S. District Court for the Eastern District of North Carolina. Farr represented then-Sen. Jesse Helms’, R-N.C., 1990 re-election campaign, which distributed postcards to black residents warning of penalties for illegal voting. Questioned by the Senate Judiciary Committee, Farr said that he knew nothing of the postcard plan until the Justice Department filed a complaint. Yet a former federal attorney who worked on the case says that Farr was involved in the planning.

Republicans on the committee have already voted in support of both Talley and Farr. It is now up to the full Senate to reject Talley’s nomination. Meanwhile, the committee should hold another hearing with Farr to determine his involvement in the voter-suppression effort and whether he was truthful with the Senate.

These cases are reminders of why the Senate must take seriously its responsibility to “advise and consent” on judicial nominees, rather than ramming through whomever the president selects. Recently, Grassley announced that he would no longer honor all requests by senators to block unpalatable nominees from their home state. Called “blue slips,” these requests have certainly been abused — but after the loss of the filibuster, the chipping away of further checks is one more degradation of an already distorted process.

Trump’s roster of conservative judicial appointments is likely to leave a significant legacy. We must hope that the further destruction of the judicial confirmation process is not a legacy as well.

The Washington Post