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Trump Pick Confirmed, Boosts 11th Cir. Conservative Lean (1)

Feb. 11, 2020, 8:01 PMUpdated: Feb. 11, 2020, 10:08 PM

The U.S. Senate confirmed Andrew Brasher to the Atlanta-based federal appeals court, increasing the conservative lean on a court central to voting rights cases.

The Republican-led chamber voted 52 to 43 along party lines to approve Brasher to the U.S. Court of Appeals for the Eleventh Circuit, over the opposition of Democrats and civil rights groups, including the NAACP. They say his work on cases involving voting and LGBT rights in his role as Alabama’s solicitor general make him unfit for the role. Republicans dismissed that criticism.

In his push to remake the judiciary with conservatives, President Donald Trump “flipped” the Eleventh Circuit last year, giving Republican-appointed judges a majority over their colleagues appointed by Democrats. Brasher’s nomination increases their sway.

While political affiliation isn’t an indicator alone of how a judge might rule, it reflects what a president wants in an appointment. The realignment on the Eleventh Circuit may be important for election law cases, which frequently arise in the three states it covers: Alabama, Florida, and Georgia.

Brasher is the first Trump nominee in 2020 to win circuit court confirmation and the 51st overall of his presidency. Trump appointments account for more than a quarter of seats on those courts, which sit one rung below the Supreme Court and are the last stop for all but a small number of appeals.

A ‘Specific Agenda’

Democrats worry the new lean and Brasher’s presence on the court could result in decisions that decrease access to fair elections.

Trump selected Brasher with a “very specific agenda in mind,” said Andrew Gillum, a former mayor of Tallahassee who was the 2018 Democratic nominee for governor in Florida.

“It’s my opinion that this agenda is designed with a clear intention to keep communities of color, young people, and returning citizens from voting,” Gillum said on a call with reporters. “Especially my state, the state of Florida, which is going to be a critical state in the election of 2020.”

Concerns over Brasher’s record on election law issues stem from his work as solicitor general.

In that role, for example, Brasher signed Alabama’s amicus brief to support a conservative position in the landmark Supreme Court case Shelby County v. Holder. He argued congressional renewal of that law was not constitutional in that brief. And the high court ultimately ruled 5-4 that a key section of the 1965 Voting Rights Act was unlawful.

California Sen. Dianne Feinstein, the top ranking Democrat on the Judiciary Committee, highlighted that brief and others as a reason she wouldn’t back Brasher. She’s been a reliable opponent of Trump judicial picks.

Senate Minority Leader Chuck Schumer (D-N.Y.) chastised his Republican colleagues before the vote on Brasher.

“Whether it’s covering up for President Trump and his attempts to cheat in our elections or confirming judges like Mr. Brasher, with a history of race-rated voter discrimination, Senate Republicans are showing outright contempt for the very wellspring of our Democracy, the right for American citizen to vote in free and fair elections,” Schumer said in floor remarks.

Representing His Client

But Republicans defended Brasher, saying a lawyer’s work for the client shouldn’t be used against them.

“The Senate Democrats and their left wing allies are attacking one of the president’s judicial nominees for his legal work on behalf of his clients,” Mike Davis, the president and founder of the conservative Article III Project.

“Judge Andrew Brasher is right out of central casting. He is superbly qualified for the Eleventh Circuit,” Davis said, pointing to his favorable rating from the American Bar Association.

Brasher received a unanimous “Well Qualified” rating to serve on the circuit court from the ABA committee that reviews judicial nominees.

Sen. Richard Shelby (R-Ala.) touted Brasher’s background in a Senate floor speech, highlighting his undergraduate degree from Samford University and law degree from Harvard.

“I believe he will be an asset to our judicial branch on the Eleventh Circuit Court of Appeals,” Shelby said. Brasher also clerked on the Eleventh Circuit and argued before the Supreme Court three times as Alabama solicitor general.

Brasher currently sits on the U.S. District Court for the Middle District of Alabama, a position he’s held for under a year. The 38-year-old will be one of the youngest appeals court judges in the country.

District Nominees Advance

The Senate also voted to end debate, or invoke cloture, on four district court nominees for courts in Alaska, Missouri, Illinois and New York. Their confirmation votes are scheduled for Wednesday.

Those trial court nominees were:

(Updates throughout with detail and comment on Brasher's role as Alabama solicitor general. )

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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