Minutes after Chief Justice John Roberts gaveled out President Trump’s impeachment trial, which had consumed the Senate for almost three weeks, Majority Leader Sen. Mitch McConnell, R-Ky., got right back to what he’s said is his top priority — confirming judges.
Less than half-an-hour after TV networks cut away from the Senate to dive into the ramifications of the body acquitting Trump, McConnell filed cloture on the nomination of Judge Andrew Brasher to the 11th Circuit Court of Appeals, a procedural step that moved the controversial nominee one step closer to confirmation. The body took the next step to confirming Brasher Monday by approving the motion with a 46-41 vote, setting the Senate on a course to vote on his nomination Tuesday afternoon.
Progressive groups, which have opposed many Trump nominees, cried foul over the move.
“Last Wednesday, a narrow majority of the Senate voted to cover up the president’s actions. Immediately after the vote to betray our democracy, Senate Majority Leader Mitch McConnell turned right back to nominations,” said Lena Zwarensteyn, the Fair Courts campaign director for The Leadership Conference on Civil and Human Rights. “McConnell is staying the course on shielding the president’s actions from checks and balances and stacking the courts with nominees who have records of hostility to civil and human rights, particularly voting rights.”
Others on a conference call with reporters that was organized by the liberal group included Sen. Chris Coons, D-Del., former Florida Democratic gubernatorial candidate Andrew Gillum and NAACP Alabama State Conference President Bernard Simelton. They said Brasher has a history of fighting against voting rights, gay rights, women’s health care and environmental protection.
“Voting rights are at the very foundation of civil liberties and civil rights in our society, and we should be doing everything possible to protect and defend them,” Coons said. “I’m gravely concerned that Judge Andrew Brasher, if confirmed to the Eleventh Circuit, would only continue the efforts to roll them back. Judge Brasher’s record and lack of candor during his confirmation hearing show that he is unfit for this appellate judgeship in the Eleventh Circuit, and I will be voting no.”
The 38-year-old Brasher would be Trump’s 51st judge confirmed to the appeals courts and 188th overall, according to a Heritage Foundation count. He was confirmed to the Middle District Court of Alabama last year and was previously the Alabama Solicitor General, a job in which he argued before the Supreme Court and the 11th Circuit, the bench Trump and Senate Republicans would like him to join. Also a former white-collar criminal defense lawyer and civil litigator, Brasher received a unanimous “Well-Qualified” rating from the American Bar Association for his nomination to the 11th Circuit.
‘Immediately after the vote to betray our democracy, Senate Majority Leader Mitch McConnell turned right back to nominations.’
Republicans have been supportive of Brasher’s nomination, which saw a cloture vote split on party lines with no defections either way.
“Andrew Brasher is an outstanding choice to serve as a district judge for the Middle District of Alabama,” Sen. Richard Shelby said when Brasher was confirmed to his district court post in May. “His judicial temperament and vast legal experience make him well-suited to assume this new role.”
Shelby was just as supportive of the judge when Trump nominated him to the 11th Circuit in November.
The Leadership Conference cites several issues, chiefly Brasher’s work to “restrict” voting rights, as reasons why the Senate should oppose the judge’s nomination.
“In 2013, in the infamous Shelby County v. Holder decision, five right-wing justices on the Supreme Court gutted the landmark Voting Rights Act, which had been repeatedly reauthorized by strong bipartisan majorities in Congress,” the organization wrote in a letter. “Mr. Brasher filed an amicus brief asking the Court to do just that. He asserted that ‘Congress violated the Constitution’ when it reauthorized the Voting Rights Act in 2006.”
Shelby County, Ala., was challenging a provision in the Voting Rights Act (VRA) that required certain jurisdictions to prove to the federal government that any election law they implemented was nondiscriminatory, a rule it said was an overreach by Congress. The majority agreed with Brasher in the case that Congress did, in fact, exceed its constitutional authority. But his amicus brief — or “friend of the court” brief — put him at odds with Justice Ruth Bader Ginsburg, who wrote in a dissent that the VRA provision was still relevant because Alabama had been found to violate the VRA more often than almost all other states between 1982 and 2005.
Beyond voting rights, critics point to an amicus brief Brasher filed on behalf of Alabama that opposed federally mandated marriage equality in the landmark Obergefell v. Hodges case, arguing that “Sexual relationships between men and women – and only such relationships – have the ability to provide children with both their biological mother and their biological father in a stable family unit.” Brasher would also not explicitly say that Brown v. Board of Education, the Supreme Court case that mandated public schools be racially integrated, was correctly decided.
The judge said the fact he might one day face a case with Brown v. Board of Education as a precedent meant he should not publicly take a position on it, a stance several Trump judicial nominees have taken in Senate hearings.
Brasher also doesn’t have what’s called a “blue slip,” from Sen. Doug Jones, D-Ala., the traditional name for approval from a judge’s home-state senators. The Senate typically would not move forward with a nomination without blue slips, but McConnell has done away with that precedent, particularly for nominations to the California-based 9th Circuit Court of Appeals with Sens. Kamala Harris, D-Calif., and Dianne Feinstein, D-Calif., staunchly opposing Trump’s picks.
Brasher will be Trump’s sixth appointment to the 11th Circuit, meaning the president will have filled half the court’s bench in his just over three years in office. Trump’s and McConnell’s focus on confirming judges has allowed them to change the balance on the 11th Circuit from a majority of Democrat-appointed judges to a majority of Republican-appointed judges. The same is the case on the 3rd Circuit and the 2nd Circuit.
McConnell boasted about that accomplishment at a dinner for the Federalist Society, a powerful organization of conservative and libertarian lawyers, late last year.
Brasher’s confirmation vote Tuesday afternoon, which is nearly certain to pass, will immediately be followed by a batch of cloture votes on four district court nominees, setting them up to likely be confirmed later this week.
McConnell’s redoubled effort to shepherd one young conservative judge after another into lifetime appointments is sure to please conservatives like Carrie Severino, the president of the Judicial Crisis Network.
“As an appellate advocate, Judge Brasher argued three times before the Supreme Court and seventeen times before the Eleventh Circuit,” Severino said in a statement to Fox News. “Yet despite Brasher’s impressive credentials and experience, the left persists in its sad and tiresome smear campaign against President Trump’s outstanding nominees.”
She continued: “I am hopeful the Senate will once again see through the baseless smears, and vote to confirm a great judge.”