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Brett Talley is a very unusual judicial nominee.
Talley, 36, a Trump nominee for the US District Court for the Middle District of Alabama has never tried a case in his life (he has written more horror novels than he’s tried cases). In fact, he has only practiced law for three years, spending the bulk of his time since law school as a clerk or working for Republican campaigns. The American Bar Association unanimously ruled him "unqualified," only the fourth such rating since 1989 (and the second under President Donald Trump). He pledged his “support to the NRA [National Rifle Association]; financially, politically, and intellectually” in a 2013 blog post and told the Senate Judiciary Committee that despite the pledge, he would not commit to recuse himself from gun control cases.
Talley declined to disclose to Congress, when asked for potential conflicts of interests, that his wife, Ann Donaldson, is not only a White House staffer but chief of staff to the White House counsel, whose office is in charge of picking judicial nominees. (A White House official told the New York Times that Donaldson wasn’t involved in the judicial nomination process, and thus in picking her own husband.)
The Senate Judiciary Committee nevertheless approved Talley on a party-line vote. And while his nomination is unusual — and has gotten attention — given Talley’s inexperience and multiple apparent conflicts of interest, the context is arguably more important. The Talley nomination is part of a bigger effort by Trump to quickly and completely overhaul the federal judiciary.
Trump has more vacancies to fill than any president in recent memory and has been filling them at a faster pace than other presidents early in their terms. If he fills them all, especially with young nominees like Talley, it could alter the balance of power on federal lower courts for decades to come.
The courts have a huge number of vacancies
District and appellate courts are the first two stages of the federal court systems. District courts are trial courts, hearing both federal criminal cases and lawsuits and making determinations of facts. Circuit Courts of Appeals are regional courts that hear appeals to district court decisions; their determinations can in turn be appealed to the US Supreme Court.
There are now 145 federal court vacancies, including 137 in the US Courts of Appeals and District Courts (the other eight are in specialty courts). Trump has named nominees for 44 of those 137 spots, putting him a little under a third of the way through clearing the backlog. Already, eight of his Circuit Court nominees and four of his District Court nominees have been confirmed by the Senate.
By contrast, President Obama only made 40 nominations to federal courts (including the specialty courts) in his first year as president, and didn't get any confirmed until November. Obama nominated far more in his second term, setting a record with 183 nominations from January 2013 to 2014 (and 49 confirmations in that first year), but Trump is outpacing his first-term record.
Trump has two big advantages over Obama in his first term. One, he has a Senate with no filibuster for judicial nominations, allowing judges to be confirmed with only 51 votes in support. Democrats under Harry Reid changed Senate rules to abandon the filibuster for lower-court nominations in November 2013, meaning that Obama had only about a year of a Democratic-majority Senate without judicial filibusters before Republicans took control of the chamber in the 2014 midterms. Trump, by contrast, has enjoyed those advantages for his entire presidency so far.
He also has a relatively high number of vacancies. When Trump took office, there were 105 District and Court of Appeals vacancies. When Obama took office, there were only 54. Both got more vacancies as their terms proceeded and co-partisans on the bench chose to retire so a president of their party would replace them. But Trump started with a huge leg up due to the additional vacancies at the start.
As analysis from the team at Ballotpedia shows, the aging of the federal judiciary means that by the end of 2020, slightly more than half of district and appeals court judgeships will be A) vacant, B) filled by Trump, or C) held by a judge old enough to take senior status and semi-retire, leaving, essentially, a vacancy to be filled. By contrast, Obama replaced about 38 percent of those judges during his two terms in office.
Not all of the judges eligible to take senior status under Trump will take senior status, of course, and those who do will be disproportionately Republicans. But Democrat-appointed judges will retire and die too, and relative moderates appointed by George H.W. Bush will give way to the types of judges Trump favors.
Regardless of how retirements ultimately shake out, the core point remains that Trump will have considerable power to use his Republican Senate majority, and the 50-vote threshold that Democrats established for lower-court judgeships in 2013, to move the lower courts solidly to the right over the next four years. If he’s committed, and if he nominates people fast enough, there’s little that can stand in his way.
