Senate recommends for lifetime judgeships two lawyers the ABA deems not qualified

The Senate Judiciary Committee on Thursday recommended that Brett Talley, a Justice Department lawyer who's never tried a case in federal court, should get a lifetime position as a federal court judge.

A hardcore conservative best known as a blogger, Talley was selected in spite of having little experience with federal courts and after receiving a rare "Not Qualified" rating from the American Bar Association, a score that usually renders judicial candidates ineligible to ascend to the federal bench.

It's the first time in nearly 20 years the committee has approved a nominee declared not qualified by the American Bar Association, which has been vetting judicial candidates since the 1950s. GOP lawmakers contend that, despite its nonpartisan reputation – and its thorough vetting, including scouring a candidate's writings and interviewing dozens of his or her associates – the ABA is a liberal organization that is looking to undermine conservative candidates.

Talley and Holly Teeter, another judicial nominee the committee approved on Thursday, are among four of President Donald Trump's judicial nominees who got the ABA's lowest ranking. The others, Leonard Grasz, and Charles Goodwin, haven't had committee votes yet.

Members of the Senate Judiciary Committee
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Members of the Senate Judiciary Committee

Sen. Chuck Grassley (R-IA)

(REUTERS/Aaron P. Bernstein)

Sen. Dianne Feinstein (D-CA)

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Sen. Orrin Hatch (R-UT)

(REUTERS/Joshua Roberts)

Sen. Richard Blumenthal (D-CT)

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Sen. John Cornyn (R-TX)

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Sen. Patrick Leahy (D-VT) 

(Photo by Chip Somodevilla/Getty Images)

Sen. Ted Cruz (R-TX)

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Sen. Thom Tillis (R-NC) 

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Sen. Mazie Hirono (D-HI)

(REUTERS/Joshua Roberts)

Sen. Jeff Flake (R-AZ)

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Sen. Dick Durbin (D-IL)

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Sen. Lindsey Graham (R-SC)

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Sen. Amy Klobuchar (D-MN)

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Sen. Mike Lee (R-UT)

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Sen. Ben Sasse (R-NE)

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Sen. Al Franken (D-MN)

(REUTERS/Joshua Roberts)

Sen. Mike Crapo (R-ID)

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Sen. John Kennedy (R-LA)

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Sen. Sheldon Whitehouse (D-RI)

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Sen. Chris Coons (D-DE)

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Democrats complain that the nominees are evidence that the White House and Senate Republicans are rushing to pack the courts with far-right ideologues, regardless of qualifications, to placate big-dollar donors before the political winds shift against Republicans in the 2018 midterm elections.

Sen. Dianne Feinstein, a California Democrat and Judiciary Committee ranking member, noted in the hearing that Talley, 36, hasn't presented a case in federal court. For judicial nominees, she said, "it would be helpful to have tried a case [there] before."

But Sen. Charles Grassley, an Iowa Republican and judiciary Committee chairman, defended Trump's pick. 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," Grassley said in a statement at the hearing. "'Not qualified' ratings by the ABA have certainly not deterred a positive committee recommendation in the past. In fact, most nominees who have received this rating came out of Committee with a unanimous vote or by voice vote."

An ABA official disagrees, saying that the Trump administration is nominating judges – and Senate Republicans are confirming them – faster than the association can vet them.

(Brett Talley via Getty Images)

When President Barack Obama was in office, the ABA would get a chance to vet his judicial picks before he announced the nomination, the official explained on background. That way, if the investigation resulted in a poor rating, the name wouldn't be submitted for nomination.

Under Trump, "We're not getting the names until they're made public," according to the official. With more than 130 federal vacancies to fill, "it's kind of exacerbating the issue." Out of 442 judicial nominations Obama made over eight years, only nine were rated not qualified, and none of them were submitted to Congress, the ABA says.

The ABA has vetted 50 nominees since Trump took office, rated four of them not qualified, "and there are at least 15 or 20 [candidates] that have not been evaluated yet," said the official,. By contrast, the ABA vetted 102 candidates in the last two years of President George W. Bush's administration, the official said.

"I think today was a really notable moment in the history judicial nominations," says Kristine Lucius, executive vice president for policy at Leadership Conference for Civil and Human Rights, suggesting that Republicans are approving their nominees for lifetime jobs with a rubber stamp – long-term consequences be damned.

"It's a really problematic change of how the committee has conducted itself in the past," Lucius says. "In this particular moment, right now, you're seeing a rush, a frenzy to get done as many judges to change the course [of the judiciary] and the mold of President Trump's [administration]. It may be that they realize they're working on borrowed time."

Under pressure from big-money donors to show results or else, Sen. Mitch McConnell has made judicial confirmations a priority, accelerating committee schedules and cracking the whip on his party to keep the nominations moving. Irate Democrats are trying to use procedural rules to slow things down, but the rapid-fire pace of confirmation votes has continued.

The four not-qualified nominees Trump has nominated got the low rating mostly because they fall short of the ABA's guidelines for a federal judgeship, specifically because they didn't have enough experience to serve as a quality judge. The rule of thumb is 12 years of litigation; Teeter had 11 years, but Talley, a former blogger and political operative, has only 10 years, much of it spent outside the courtroom.

"In the past it's rare – almost unheard of – for a candidate to move forward with an unqualified rating," says Nan Aron, president of Alliance for Justice, a liberal organization focused on the judiciary.

"At this point they're obviously ignoring what the bar and others have to say about the candidates," Aron says of the Republicans. "But really it's a blot on the judiciary" and can do lasting damage to "have candidates with such dismal records for these lifetime appointments."

While Teeter received a unanimous vote out of committee – Democrats responded favorably to letters of recommendation from senior legal figures in her home state – Talley has been a tougher pill for the party to swallow.

"Mr. Talley is wholly unqualified for this lifetime position because he lacks the litigation experience needed to be a trial court judge," reads a letter sent to the committee by the Lawyers Conference for Civil and Human Rights, opposing Talley's nomination. "The candidate "has demonstrated ideologically extreme views that call into question his temperament and ability to approach cases with the fairness and open-mindedness necessary to serve as a federal judge."

That includes his time as a conservative blogger, writing about the mass shooting of 20 schoolchildren and six administrators at Sandy Hook Elementary School in December 2012. In the aftermath of the tragedy, Talley wrote in a January 2013 post that he "pledge[d] my support to the NRA; financially, politically, and intellectually. I ask you to do the same."

"Despite these inflammatory statements, Mr. Talley refused to commit to recusing himself, should he be confirmed, in cases that involved gun issues or the NRA," the LCCHR letter says.

Nevertheless, Talley is likely to get confirmed – mostly because Republicans have the motivation, and the votes.

So far, despite candidates that might have been problematic in earlier times, "not a single Republican member has voted 'no' on the floor for any nominee that has been put forward so far," says Carl Tobias, a law professor at University of Richmond. "It's the same for the Judiciary Committee. Everyone has gotten out with full Republican support. As long as they vote that way, everybody will go through."

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