Telltale Talley Tally

by Ed Whelan

The work of a federal district judge involves specialized trial-related skills—e.g., managing the flow of a trial—so I think that it’s eminently sensible to want nominees for federal district judgeships to have substantial trial experience.

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).

Abiding by its criteria this time, the ABA rated Talley “not qualified” on the ground that he “does not presently have the requisite trial experience or its equivalent.” (In its letter to the Senate Judiciary Committee, the ABA added that it “did not have any questions about Mr. Talley’s integrity or temperament” and that it “believes that, given the passage of time and the appropriate experience, Mr. Talley has great potential to serve as a federal judge.”)

The media have also piled on, with headlines in the New York Times and the Los Angeles Times both blaring that Talley “has never tried a case.” (Neither reporter, a Trump administration source tells me, bothered to request comment from the administration.)

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.

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