January 16, 2020
Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today highlighted concerns with Judge Andrew Brasher, President Trump’s nominee to the 11th Circuit Court of Appeals.
Video of her remarks is available here.
“I’m happy to support Judge Scott Rash. He has experience. I think he has the necessary judicial experience, received a ranking of ‘well qualified’ from the ABA.
I will also be supporting [judicial nominee] Matthew Schelp, nominated to the Eastern District of Missouri. Mr. Schelp has considerable experience as a federal prosecutor, a military attorney, and in private practice, and has also received a ‘well qualified’ rating from the ABA.
Unfortunately, I cannot support the other three nominees – Andrew Brasher, Joshua Kindred, and Stephen Vaden. I want to address the rest of my remarks to Judge Brasher’s nomination.
As Alabama’s solicitor general, Judge Brasher worked on numerous cases to restrict voting rights. For example, he signed an amicus brief urging the U.S. Supreme Court to strike down Section 5 of the Voting Rights Act. Section 5 requires states with a history of discrimination to seek permission from the federal government before making changes to voting laws.
Judge Brasher was not forthright with the committee about this brief. During his confirmation hearing, Judge Brasher claimed that his brief had ‘argued exclusively’ that Section 4 of the Voting Rights Act – which provides the coverage formula for Section 5 – ‘needed to be updated.’ But his brief also argued that Section 5 should be struck down – something the Supreme Court thankfully declined to do.
In another case, Judge Brasher filed an amicus brief with the U.S. Supreme Court defending an Arizona voter-ID law. The Supreme Court rejected Judge Brasher’s argument and struck down the law in a 7-2 opinion written by Justice Scalia.
Judge Brasher’s work on these and other cases led the National Urban League to write that his ‘alarming anti-civil rights record provides no assurance that people of color would receive justice in his court.’
Judge Brasher has also been at the forefront of Alabama’s aggressive efforts to undermine women’s rights to make their own reproductive choices.
In a 2014 case, Judge Brasher used a discredited litigation consultant with a long history of arguing that abortion causes mental illness to defend an Alabama law requiring doctors who perform abortions to have admitting privileges at local hospitals. Judge Brasher told the judge that this litigation consultant was playing a minimal, behind-the-scenes role. But that was not true.
In fact, an expert witness who testified in support of the admitting privileges law had relied on the work of this discredited consultant.
[Ultimately], Judge Myron Thompson of the Middle District of Alabama held that the law Judge Brasher defended was unconstitutional. He also issued a supplementary opinion that harshly criticized the credibility of the so-called ‘expert witnesses’ that Judge Brasher had used to support his arguments.
At his confirmation hearing – and in written questions for the record – several Senators asked Judge Brasher if he shared the discredited views of his litigation consultant that abortion causes mental illness. Judge Brasher refused to answer.
Judge Brasher also led unsuccessful efforts to make it more difficult for women to access contraception by, among other things, urging a federal court in Alabama to strike down the Affordable Care Act’s contraceptive coverage requirement.
Now, these aren’t just the positions of a lawyer representing a client. In 2014, Judge Brasher spoke at an anti-choice political rally on behalf of then-Alabama Attorney General Luther Strange. According to news reports, Judge Brasher told the crowd, ‘The ACLU and Planned Parenthood want a fight and we will give them one.’
Looking at Judge Brasher’s overall record, the NAACP concluded the following: ‘Andrew Brasher’s record is one of extremism and bias, rather than impartiality and fairness. Our nation requires federal judges who will respect the progress we have made in civil rights. We urge the Senate to reject Judge Brasher’s nomination to this powerful circuit court in the South.’
[Finally], Judge Brasher also does not have the support of both of his home-state Senators, and I will vote ‘no’ on his nomination.”
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