by Christopher Kang, ACS Board member and former Deputy Counsel to President Obama
*This piece originally ran on Huffington Post
On May 8, 2017, President Trump announced that he intended to nominate Magistrate Judge Terry Moorer to serve as a district judge in the Middle District of Alabama. This nomination would have been President Trump’s first African American judicial nominee, and it’s likely no coincidence that it was announced on the same day as Kevin Newsom for an Alabama-based seat on the Eleventh Circuit Court of Appeals. Alabama has never had an African American circuit court judge, and Newsom replaced President Obama’s African American nominee, Judge Abdul Kallon, whom Senators Sessions and Shelby had blocked.
By August, Newsom had been confirmed, but Judge Moorer still had not even been officially nominated. In fact, all nine of the other judicial nominees announced on May 8 had been nominated within a month, but for four months, there was still no sign of Judge Moorer.
On September 8, President Trump announced a little-noticed bait-and-switch: he replaced Judge Moorer’s original nomination with Brett Talley, and Judge Moorer’s final, official nomination forced him to move to the Southern District of Alabama.
At first blush, it seemed like the more qualified, African American nominee was simply shoved aside for a less qualified white man:
- Judge Moorer has served 10 years as a federal magistrate judge and 17 years as an Assistant U.S. Attorney. Talley has practiced law for less than three years and has never tried a case. He graduated law school in 2007—the same year Judge Moorer became a magistrate judge.
- Judge Moorer has been a fixture in the Middle District legal community for nearly three decades and was even born in Greenville, within the Middle District. In Talley’s legal career—and possibly in his entire life—he lived in the Middle District of Alabama for little more than three years.
- The non-partisan American Bar Association (ABA) rated Judge Moorer “unanimous Qualified.” It gave Talley its lowest possible rating—“unanimous Not Qualified”—issued for only the fourth time since 1989.
Yesterday—as new revelations swirled that Talley had failed to disclose a potential conflict of interest that his wife is a senior White House lawyer and that he alsowithheld relevant blog posts—another piece of the puzzle fell into place.
In response to questions from Senator Feinstein regarding the substantive differences in the cases considered by the Middle and Southern Districts, Judge Moorer revealed the following:
Montgomery is the capital city of Alabama; therefore, a few different types of cases may more likely be heard in the Middle District of Alabama such as redistricting cases or public corruption cases involving statewide elected officials.
In addition to redistricting and public corruption cases, because Montgomery is in the Middle District, many constitutional challenges to Alabama state laws are heard there. Just last month, a judge in the Middle District ruled that two Alabama laws that would have severely restricted abortion access are unconstitutional.
So, for these—the most political and consequential cases—President Trump once again has prioritized an ideological rubber stamp over everything else, including his own initial pick.
Judge Moorer’s responses make clear that it was not his idea to move and that his preference would have been to stay in the Middle District. In fact, if he is confirmed to be a district judge in the Southern District, he will be legally required to move there, pulling up his nearly 30-year roots from the Montgomery legal and civic community.
The White House’s explanation for its decision doesn’t add up. Judge Moorer wrote, “When I was told that I would be nominated for the Southern District of Alabama, I was also informed that my criminal law background provided additional diversity to the Southern District of Alabama bench as the other nominee had a primarily civil litigation background.”
But if experiential diversity was a factor, Judge Moorer’s nomination should have remained in the Middle District. President Trump has nominated four people to fill district court vacancies in the Middle and Southern Districts of Alabama. If all four are confirmed: in the Southern District, two of the three judges would have a criminal law background—Judge Moorer and the current Chief Judge Kristi DuBose—while in the Middle District, none of the three judges would have a criminal law background.
Of course, as Talley’s nomination shows, experiential diversity—and indeed experience and diversity in general—have nothing to do with Trump’s judicial nominations.
Instead, President Trump has imposed upon his only African American judicial nominee (out of 59 so far) to move across the state and make way for a startling unqualified political operative who has more experience writing political speeches and horror stories than practicing law—all so the president can continue to put his thumb on the scales of justice in as many courts as possible.