Trump judicial nominee Brett Talley appears to reject Roe v. Wade.

Trump Judicial Nominee Brett Talley Appears to Have Called Roe v. Wade “Indefensible”

Trump Judicial Nominee Brett Talley Appears to Have Called Roe v. Wade “Indefensible”

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Nov. 15 2017 6:08 PM

Trump Judicial Nominee Brett Talley Appears to Have Called Roe v. Wade “Indefensible”

Brett Talley
Brett Talley poses for a portrait at Holy Rood Cemetery on Tuesday December 02, 2014 in Washington, DC.

Matt McClain/The Washington Post via Getty Images

Brett Talley, Donald Trump’s controversial 36-year-old judicial nominee, appears to have written prolifically on the University of Alabama fan message board As BuzzFeed has reported, Talley likely wrote 16,381 posts under the username BamainBoston, many of which involve politics and law. Earlier, I highlighted a post in which BamainBoston defended “the first KKK.” In another post, BamainBoston wrote that both Roe v. Wade and Miranda v. Arizona, two pillars of modern constitutional law, are “indefensible.”

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern covers courts and the law for Slate.

BamainBoston expressed this view in December 2011, in response to Newt Gingrich’s claim that the president should send federal law enforcement officers to arrest judges who issue contentious decisions. According to Gingrich, these judges should be forced to defend their rulings before Congress. To his credit, BamainBoston firmly rejected this proposal. But in doing so, he noted that a “very few” decisions “are indefensible when it comes to an interpretation of the Constitution.”


“Roe v. Wade and Miranda are probably the worst offenders,” BamainBoston continued, “but that court is long gone, thank God.” (Roe protects abortion access; Miranda requires police officers to inform suspects of their right to remain silent and be provided an attorney.) BamainBoston elaborated that “the ideal of separation of powers goes even beyond those cases. Better to have bad law than have judges who make decisions based not on their interpretation of the Constitution but rather on fear that they will be hauled before Congress and threatened with impeachment if they do the unpopular thing or go against the government.”

In case anyone doubted his expertise, BamainBoston added: “Now, the simple fact of the matter is I do have inside information. I have worked for judges and I have worked for the Department of Justice. In my mind, those are good things that I bring to the board.” In December 2011, Talley was clerking for Judge Joel Dubina of the U.S. Court of Appeals for the 11th Circuit. According to the questionnaire Talley recently filled out for the Senate Judiciary Committee, he worked for the Department of Justice’s Office of Legal Policy in 2005 and 2006, while he was a student at Harvard Law School.

BamainBoston criticized both abortion providers and Miranda in additional posts on Following the indictment of anti-abortion activists for making secret videos that falsely purported to show Planned Parenthood selling fetal tissue, he wrote:

I watched the videos for the first time recently. I was stunned. I expected them to be bad, but they are stunningly so. And the whole “they were edited” thing is a lie. You can watch the entire videos without any problem.
As for the indictments, if these were Leftists doing the same thing with pro-life groups, I have a feeling the feelings here would be different.

And in the wake of a Supreme Court decision limiting Miranda, BamainBoston declared:

OK, the “right to remain silent” as we know it is a wholly judicial creation promulgated by the Supreme Court in Miranda. It is not a constitutional rule. The constitution only prevents you from having to actually testify in court when you are accused of a crime. The Supreme Court created a non-constitutional “prophylactic rule” in Miranda to bolster that constitutional protection. Because it’s just a precautionary rule that the court just made up, they have expanded and contracted the right depending who is on the court. The most “conservative” position is that Miranda should be overturned and your right to remain silent returned to the courtroom whence it began.

That’s not actually true. The Fifth Amendment’s guarantee against self-incrimination certainly prevents the government from compelling a criminal defendant to testify at his own trial. But it also bars the government from introducing at trial prior statements obtained from a criminal defendant through coercion. The right to remain silent, both at your own criminal trial and during police interrogation, is thus explicitly protected by the Fifth Amendment. Miranda added another rule, requiring police to inform suspects of their right to remain silent (and their right to have an attorney). BamainBoston appears to have conflated this extra-textual command with the Constitution itself. And so, in his zeal to condemn Miranda, he accidentally denounced the Fifth Amendment.

Talley did not disclose his constitutional musings on to the Senate Judiciary Committee. White House spokesman Hogan Gidley defended this omission, telling BuzzFeed:

The Senate Judiciary Committee questionnaire asks for published writings and public statements—not everything that's ever been typed on a keyboard. Alabama football fans’ internet message board conversations are not deemed “published writings”, “public statements”, or “published material;” nor are they deemed the equivalent of “books”, “articles”, or “reports.”

Gidley’s comment is incomplete and disingenuous. BamainBoston and other “Alabama football fans” ventured far beyond sports in their wide-ranging discussions. While Talley did disclose a wide range of his writings to the committee, including his horror-themed fiction, he made no mention of his posts about Roe v. Wade and Miranda v. Arizona. It’s important for nominees to be candid about their view of precedent, particularly precedent whose legitimacy they reject. Senators can and should evaluate nominees’ preconceptions in determining whether they will apply settled law faithfully.

If confirmed, Talley will oversee criminal trials, and will rule on the constitutionality of various abortion restrictions. He may also hear challenges to Alabama’s ongoing efforts to defund Planned Parenthood. BamainBoston’s posts—published writing that the Senate Judiciary Committee was not told about—call into question Talley’s ability to rule on these issues with accuracy and objectivity.

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