To: Interested Parties
From:  Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: February 8, 2018
Re: Troubling Judicial Nominees from a Racist President

[Updated March 23] President Trump has had 28 of his federal circuit and district court nominees confirmed by the Senate—a remarkably high number for this early in an administration. An additional 55 are making their way through the Senate, while three were returned to the White House at the end of 2017 and not renominated. Among the 86 lawyers he has chosen for lifetime positions on our nation’s lower federal courts, only seven are people of color. That’s only eight percent, a sharp departure from the previous administration’s 37 percent rate. Even more dramatically, only one of Trump’s nominees is African American.

For these lifetime positions, Trump has chosen many extreme, narrow-minded elitists who have spent their careers seeking to limit the rights of others, including people of color.

This should not come as a surprise. These nominations come from a president who condemned “many sides” in response to white nationalist violence in Charlottesville, urged NFL team owners to fire players for protesting police violence against African Americans, disparaged Haiti and African nations as “shithole countries,” spread the racist birther lie about President Obama, called Mexicans rapists and criminals, pardoned the notoriously racist Joe Arpaio, insulted federal judge Gonzalo Curiel for his Hispanic heritage, proudly announced he would ban Muslims from entering the country, and more.

Below are several examples of our racist president’s nominees with disturbing records regarding the rights of people of color.

Thomas Farr
(Eastern District of North Carolina)

Among President Trump’s nominees, Thomas Farr may have the most dramatically terrible record on racial equality. For decades, when North Carolina Republicans have been sued for voter suppression, they have turned to Farr to represent them. He defended the state’s monster voter suppression law, which was struck down by the Fourth Circuit. The court found that the legislation was actually intended to make voting harder for African Americans, and that its provisions “target[ed] African Americans with almost surgical precision.” He also defended racially gerrymandered congressional districts designed by his party, which the Supreme Court found unconstitutional.

In 2016, when North Carolina stripped residents of the right to go to court when they are victims of unlawful discrimination, Farr expressed his personal support. Indeed, his career has been dedicated to undermining anti-discrimination laws, suppressing the vote, and weakening unions.

Especially concerning was his involvement in a notorious voter suppression effort by the Jesse Helms campaign in 1990. The campaign sent more than 100,000 postcards to mostly African-American voters, suggesting not only that they were not eligible to vote, but also that they risked prosecution for voting. Farr worked with the campaign at a high level, but in his response to written questions, he assured senators that he had not known of the postcards until after they were sent.

Afterward, evidence arose seriously undermining that claim, showing he was at a “ballot security” planning meeting where the postcards were discussed. Rev. William Barber described this as “disturbing new information indicating that Farr misrepresented his past to the Committee and showing Farr’s connections to the worst elements of white supremacy.” Sen. Cory Booker wrote to Farr seeking an explanation. Booker noted that Farr’s response raised even more questions, and he and Sen. Kamala Harris (both new to the Judiciary Committee) requested a follow-up hearing to question Farr about the apparent discrepancy with his sworn testimony. However, Chairman Chuck Grassley refused, and the committee voted on a party-line basis to advance his nomination to the full Senate.

Thomas Farr has worked hard to disenfranchise people with roots in countries called “shitholes” by the president who wants to give him a lifetime position as a federal judge in the North Carolina district with the largest African American population.

But aiding voter suppression is only a small part of his professional life. The bulk of his career has been in private practice, choosing to defend corporations sued for violating their employees’ legal rights, including those related to discrimination. His law firm’s website boastfully lists examples of Farr’s experience, including:

• Lead counsel in defending against numerous employment discrimination cases
• Lead defense counsel in class-action suit brought by Washington-based legal defense fund against a local rental car company for alleged racial discrimination against customers
• Lead defense counsel in class action by EEOC against major multinational corporation for alleged racial harassment

Finally, Farr has been nominated to fill a vacancy that shouldn’t even exist, in a district that has never had an African American judge. President Obama nominated two highly qualified African American women for that judgeship—Jennifer May-Parker and Patricia Timmons-Goodson. But North Carolina’s GOP senators blocked both nominees without explanation, leaving the vacancy open for years for it to be filled by Farr.

Status: Approved by committee in a party-line vote and awaiting floor vote.

Mark Norris
(Western District of Tennessee)

As the Tennessee Senate’s Majority Leader for over a decade (and a member of that body since 2000) Mark Norris has made statements and advocated policies that have loudly proclaimed certain people as outsiders in our society. People of color would understandably lack confidence that they would stand as equals in his courtroom.

• He helped make it harder to remove or rename monuments designed to promote white supremacy and instill fear in African Americans.
• He fought to prevent Syrian refugees from resettling in Tennessee and posted highly inflammatory material linking them to ISIS terrorists.
• He declined to support a simple resolution honoring Nashville activist Renata Soto for being named Chair of the Board of Directors of the National Council of La Raza because the resolution mentioned NCLR.
• He sponsored a bill to permit enhanced penalties for state criminal defendants who are deemed by the trial judge to be in the country unlawfully.

Status: Approved by committee in a party-line vote and awaiting floor vote.

Brett Talley
(Middle District of Alabama)

Perhaps Brett Talley’s most publicized disqualification was his stunning inexperience actually practicing law. But far more disturbing were some of the political comments he wrote on the University of Alabama’s football fan message board:

• He leapt to the defense of “the first KKK” and of Nathan Bedford Forrest, the Klan’s first Grand Wizard.
• He wrote that mainstream Islam calls for the murder of non-Muslims, and that then-candidate Donald Trump “says what everyone is thinking about Islam but doesn’t want to say.”

Status: Approved by committee in a party-line vote, but nomination subsequently withdrawn.

John Bush
(6th Circuit Court of Appeals)

John Bush anonymously engaged in often-venomous political debate through a blog, Elephants in the Bluegrass. The blog and other parts of his record raised serious concerns that would give African American plaintiffs pause about the kind of treatment they might receive in his courtroom.

• In his blog posts, he frequently commented on President Obama and Kenya, trafficking in birtherism and denigrating the president as “Barry.”
• He praised two speakers at the Republican National Convention for their “stirring talks focusing on why blue lives matter.” One of the speakers had asserted that the Black Lives Matter movement advocates anarchy.
• Bush is a strong proponent of originalism in interpreting the Constitution. Yet in response to senators’ written questions, he claimed never to have thought about how Brown v. Board of Education and Loving v. Virginia would have come out under an originalist approach.
• He joined a Louisville social club that had been in court just two years earlier insisting the state anti-discrimination commission had no authority to investigate the club over claims of discrimination. The Pendennis Club had imposed a complete ban on women members until the 1980s and African American members until the 1990s. Bush failed to disclose the club’s discriminatory history to the Judiciary Committee, despite explicitly being asked about it.

Status: Confirmed by party-line vote.

Kyle Duncan
(5th Circuit Court of Appeals)

Kyle Duncan’s career demonstrates a commitment to depriving targeted groups of their basic rights and dignity. People of color have found themselves included in these efforts, primarily through Duncan’s efforts to make it harder for them to vote.

• When North Carolina went to the Supreme Court to defend its monster voter-suppression bill, Duncan was one of the lawyers they turned to. The Fourth Circuit had struck the law down, noting that its provisions “target[ed] African Americans with almost surgical precision.”
• Duncan also accepted the call to represent Texas in defense of a restrictive voter ID law that the trial court judge concluded had been adopted with the intent to discriminate.

Status: Approved by committee in a party-line vote and awaiting floor vote.

Our democracy is premised on the idea that all parties stand as equals before the judge and before the law, regardless of their wealth or influence. When people and groups are deprived of their rights, independent and fair-minded judges can be all that stand between lawless domination by the strong and a democracy that protects everyone’s liberties. Unfortunately, too many of President Trump’s judicial nominees seem to be anything but independent and fair-minded.

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