Court hears arguments on Alabama trans youth treatment ban
Alabama asked an appellate court Friday to let the state outlaw the use of puberty blockers and hormones to treat transgender children — a move some parents argued violates their right to make decisions about their children’s health care. A three-judge panel of the 11th U.S Circuit Court of Appeals heard arguments in Alabama’s appeal of a preliminary injunction blocking enforcement of the first-of-its-kind law that would make it a felony, punishable by up to 10 years in prison, to give the medications to assist transgender minors in their transition. The arguments in Alabama come three months after the 8th U.S. Circuit Court of Appeals agreed to keep similar Arkansas law on hold. The bans have become a flashpoint as Republican-controlled legislatures advanced bills to not only block medical treatment but also ban transgender children from using school restrooms or playing on sports teams that don’t correspond with their sex at birth. Jeff Doss, an attorney representing five parents and a pediatrician who challenged the law, urged the court to keep the ban on hold. He said the law is discriminatory, and Alabama took the “unprecedented” step of trying to criminalize the accepted standard of care for a medical condition. “If parental freedom means anything, it means that a parent, not the state, should decide whether their child receives life-saving medical intervention, consistent with the standard of care,” Doss said. Doss said after court that “it should be chilling for everyone” that the state is trying to tell parents, “we know best, and we are the ones who are going to make this decision for you parents.” Edmund LaCour, Alabama’s solicitor general, argued that the state has the authority to regulate medical treatments it deems risky. He disputed arguments that the law discriminated against transgender individuals because the drugs are still available to everyone, just not “to affect a cosmetic sex change” “The law does not prohibit any sort of therapy. It doesn’t require that males go by he or that girls wear dresses. All it does is target the risky treatments,” LaCour said. LaCour, at one point, asked judges to imagine if children wanted to use skin grafts, a treatment for severe burns, to change their race. Doing so would just be too risky, he argued. Multiple medical groups, including the American Academy of Pediatrics and the American Medical Association, oppose the ban. The U.S. Justice Department has also opposed the ban as unconstitutional. Fifteen states filed briefs supporting Alabama’s efforts to ban the treatments. The appellate judges did not indicate when they will rule. U.S. Circuit Judge Andrew Brasher, who was Alabama’s solicitor general before he was appointed to a federal judgeship, asked both sides if the law amounted to sex discrimination and if the state had other regulation options, short of an outright ban, if it was concerned about the possible overuse of the medications. Arkansas was the first state to enact such a treatment ban. A federal judge last year blocked the Arkansas law from going into effect, and the appellate court upheld the decision. A trial began last month in the lawsuit seeking to permanently strike down the ban. The Alabama law, dubbed the Vulnerable Child Compassion and Protection Act, went further in putting criminal penalties of people who provide the medications. U.S. District Judge Liles Burke in May issued a preliminary injunction to stop Alabama from enforcing the medication ban. Burke did not block a portion of the law banning sex-altering surgeries for minors, which doctors testified are not performed in Alabama. He also left in place a provision that requires counselors and other school officials to tell parents if a minor discloses that they think they are transgender. Alabama Gov. Kay Ivey at the time called Burke’s ruling blocking the medication ban a “temporary legal roadblock.” The trial in the ongoing litigation is expected next year, attorneys said. Republished with the permission of The Associated Press.
Court lifts hold on Mar-a-Lago records
In a stark repudiation of Donald Trump’s legal arguments, a federal appeals court on Wednesday permitted the Justice Department to resume its use of classified records seized from the former president’s Florida estate as part of its ongoing criminal investigation. The ruling from a three-judge panel of the U.S. Court of Appeals for the 11th Circuit amounts to an overwhelming victory for the Justice Department, clearing the way for investigators to continue scrutinizing the documents as they consider whether to bring criminal charges over the storage of top-secret records at Mar-a-Lago after Trump left the White House. In lifting a hold on a core aspect of the department’s probe, the court removed an obstacle that could have delayed the investigation by weeks. The appeals court also pointedly noted that Trump had presented no evidence that he had declassified the sensitive records, as he maintained as recently as Wednesday, and rejected the possibility that Trump could have an “individual interest in or need for” the roughly 100 documents with classification markings that were seized by the FBI in its August 8 search of the Palm Beach property. “If you’re the president of the United States, you can declassify just by saying, ‘It’s declassified.’ Even by thinking about it…You’re the president; you make that decision,” Trump claimed in a Fox News Channel interview recorded Wednesday before the appeals court ruling. The government had argued that its investigation had been impeded, and national security concerns swept aside, by an order from U.S. District Judge Aileen Cannon that temporarily barred investigators from continuing to use the documents in its inquiry. Cannon, a Trump appointee, had said the hold would remain in place pending a separate review by an independent arbiter she had appointed at the Trump team’s request to review the records. The appeals panel agreed with the Justice Department’s concerns. “It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in ‘exceptionally grave damage to the national security,’” they wrote. “Ascertaining that,” they added, “necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised.” An injunction that delayed or prevented the criminal investigation “from using classified materials risks imposing real and significant harm on the United States and the public,” they wrote. Two of the three judges who issued Wednesday’s ruling — Britt Grant and Andrew Brasher — were nominated to the 11th Circuit by Trump. Judge Robin Rosenbaum was nominated by former President Barack Obama. Lawyers for Trump did not return an email seeking comment on whether they would appeal the ruling. The Justice Department did not have an immediate comment. The FBI last month seized roughly 11,000 documents, including about 100 with classification markings, during a court-authorized search of the Palm Beach club. It has launched a criminal investigation into whether the records were mishandled or compromised, though is not clear whether Trump or anyone else will be charged. Cannon ruled on September 5 that she would name an independent arbiter, or special master, to do an independent review of those records and segregate any that may be covered by claims of attorney-client privilege or executive privilege, and to determine whether any of the materials should be returned to Trump. Raymond Dearie, the former chief judge of the federal court based in Brooklyn, has been named to the role and held his first meeting on Tuesday with lawyers for both sides. The appeals court ruling appears to substantially narrow the special master’s job description, enabling the Justice Department to avoid providing him with classified documents to review. Instead, Dearie would review the much larger tranche of non-classified government documents. The Justice Department had argued that a special master review of the classified documents was not necessary. It said Trump had no plausible basis to invoke executive privilege over the documents, nor could the records be covered by attorney-client privilege because they do not involve communications between Trump and his lawyers. It had also contested Cannon’s order requiring it to provide Dearie and Trump’s lawyers with access to the classified material. The court sided with the Justice Department on Wednesday, saying “courts should order review of such materials in only the most extraordinary circumstances. The record does not allow for the conclusion that this is such a circumstance.” Though Trump’s lawyers have said a president has absolute authority to declassify information, they have notably stopped short of asserting that the records were declassified. The Trump team this week resisted providing Dearie with any information to support the idea that the records might have been declassified, saying the issue could be part of their defense in the event of an indictment. The Justice Department has said there is no indication that Trump took any steps to declassify the documents and even included a photo in one court filing of some of the seized documents with colored cover sheets indicating their classified status. The appeals court, too, made the same point. “Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified,” the judges wrote. “In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.” Republished with the permission of The Associated Press.
Steve Flowers: We now have a very youthful federal judiciary in Alabama
Our senior senator, Richard Shelby, has left an indelible legacy and imprint on our state. Every corner of the state has been the recipient of his prowess at bringing home the bacon to the Heart of Dixie. Every university has enjoyed a largesse of federal dollars. He has made the Huntsville Redstone Arsenal one of the most renowned high technology regions in the nation, not to mention placing the FBI’s second home in Huntsville. Shelby’s accomplishments for Alabama would take a book to enumerate. However, what is not universally known is that Senator Richard Shelby has transformed the federal judiciary in Alabama for years to come. During the entire eight-year presidency of Barack Obama, by nature, we had some attrition in our federal judiciary in all three regions, Northern, Middle, and Southern Districts. Even though President Obama sought to appoint Democratic judges throughout the state, Senator Shelby and Senator Jeff Sessions thwarted all Democratic appointees and held these cherished and powerful judgeships vacant. Shelby and Sessions were hopeful that one day there would be a Republican president coupled with a Republican Senate majority, and they would be able to appoint Republican jurists to the federal bench in Alabama. That happened when Donald Trump became president. Senator Sessions had parted with his senate seat to become attorney general, so that left Senator Shelby to select and get confirmed a host of new, young federal judges in Alabama. Shelby assigned his loyal and brilliant Chief of Staff, Katie Boyd Britt, the job of vetting potential federal judgeships. She and Shelby chose an outstanding cadre of young, well-educated, extremely qualified, moderately conservative men and women to sit on the federal bench in Alabama. This group is stellar and will be the majority of federal judges for the next 25 to 30 years. This coup of appointing young, conservative, extremely capable judges to the federal bench in Alabama may be one of Senator Richard Shelby’s greatest legacies. Shelby had Andrew Brasher first appointed to the Middle District of Alabama. However, soon thereafter, an opening occurred on the Eleventh Circuit, and so Shelby had President Trump appoint Brasher to the higher appeals court. Prior to Brasher’s appointment to the Middle District, he practiced law with Bradley Arant in Birmingham. He was solicitor general and a law clerk for Judge Bill Pryor. Judge Brasher is a graduate of Samford University and Harvard Law School. Senator Shelby had President Trump appoint Anna Manasco as a federal judge in the Northern District of Alabama. Judge Manasco, like Judge Brasher, practiced law in Birmingham with Bradley Arant prior to her federal appointment. She graduated with honors from Emory University before earning her law degree from Yale Law School. Shelby aligned with President Trump to appoint Corey Maze for a seat on the federal bench in the Northern District. Judge Maze was a prosecutor for the State of Alabama Attorney General’s office. He is a summa cum laude graduate of Auburn University and a graduate of Georgetown Law. Senator Shelby had President Trump appoint Liles Burke to a federal judgeship in the Northern District. Burke was an Associate Judge of the Alabama Court of Criminal Appeals before his federal appointment. He obtained his undergraduate and law degrees from the University of Alabama. Annemarie Axon is another Trump and Shelby anointed appointee for the Northern District of Alabama. Judge Axon practiced law in Birmingham before her appointment. She, like all of the other Northern District appointees, is extremely well qualified. Axon also obtained her undergraduate and law degrees from the University of Alabama. Austin Huffaker, Jr. of Montgomery, was chosen by Shelby and Trump for a federal judgeship in the Middle District. He practiced law in Montgomery prior to his appointment. He has an engineering degree from Vanderbilt and earned his law degree from the University of Alabama School of Law. Also appointed by Shelby and Trump to the Middle District is Emily Marks of Montgomery. Judge Marks practiced law in Montgomery prior to her appointment. She is a graduate of Spring Hill College in Mobile and the University of Alabama School of Law. Jeffrey Beaverstock was appointed to a federal judgeship in the Southern District. He practiced law in Mobile and is a graduate of the Citadel and the University of Alabama School of Law. Terry Moorer was appointed by President Trump and confirmed by the senate for the Southern District. He was previously an assistant U.S. Attorney and is a graduate of Huntington College and the University of Alabama School of Law. This host of federal jurists in Alabama will be one of Senator Richard Shelby’s lasting legacies. See you next week. Steve Flowers is Alabama’s leading political columnist. His weekly column appears in over 60 Alabama newspapers. He served 16 years in the state legislature. Steve may be reached at www.steveflowers.us.
Donald Trump nominates Judge Andrew Brasher to 11th Circuit Appeals Court
President Donald Trump on Wednesday nominated U.S. District Judge Andrew Brasher of Alabama to the 11th U.S. Circuit Court of Appeals. The nomination comes just six months after Brasher was seated on the federal bench in Alabama. The White House announced the nomination in a news release. Senators in May voted 52-47 to confirm Brasher as a federal district judge. Brasher was Alabama’s solicitor general’s office in the Alabama attorney general’s office before joining the bench. The position put him in charge of appellate cases and other notable litigation, including defending Alabama’s legislative redistricting plan and an attempt to require abortion doctors to have hospital admitting privileges. Some of that work was cited by The Leadership Conference on Civil and Human Rights and other groups earlier this year in opposing his nomination as a district judge. Brasher is a graduate of Harvard Law School. He served as a law clerk to Judge Bill Pryor of the 11th U.S. Circuit. Pryor is a former Alabama attorney general. “Judge Brasher distinguished himself as a legal scholar during his lengthy tenure as solicitor general of the State of Alabama, arguing and winning cases before the U.S. Supreme Court, the U.S. Court of Appeals for the 11th Circuit, and the Alabama Supreme Court,” Alabama Attorney General Steve Marshall said in a statement. Republished with the permission of the Associated Press.
Annemarie Axon confirmed as U.S. District Judge
U.S. Sen. Richard Shelby released at statement on Wednesday celebrating the confirmation vote for U.S. District Judge for the Northern District of Alabama, Annemarie Carney Axon. Axon, who nominated for the position by President Donald Trump in 2017, appeared before the Senate Judiciary Committee for the consideration of her nomination this week. “It is critically important for a judge to be fair, open-minded, courteous, and respectful to the attorneys and parties in each case,” Axon told the committee; promising to “conduct [herself] and [her] courtroom in a manner that strives to leave people with the conviction that they were treated fairly, respectfully, and that [she] followed the law, regardless of the outcome.” She then ended her hearing with a statement, saying that “our democracy demands an independent judiciary whose decisions are based exclusively on the law, as it is written.” Shelby congratulated Axon in a news release, saying “Annemarie Axon is exceptionally qualified to be a U.S. district judge. Her strong, respectful temperament and commitment to impartiality make her well-suited for this esteemed position. Alabama’s district judges must be confirmed as swiftly as possible to ensure the efficiency of our judicial system. These judges serve as the backbone of the United States Judicial Branch, and I am honored to have played a part in Axon’s confirmation today.” Axon was one of seven Alabama judicial nominees awaiting confirmation from the Judiciary Committee. The other nominees include: Terry F. Moorer Jeffrey Beaverstock Emily Coody Marks Liles Burke Andrew Brasher Corey Maze Axon is currently a member of the Wallace, Jordan, Ratliff, & Brandt, LLC, legal team in Birmingham, where she focuses on fiduciary and probate litigation. Her legal career began in 2000 at the Edwards & Angell, LLP, firm in Rhode Island. She is still a member of both the Alabama and Rhode Island State Bar Associations. “We are extremely proud of Annemarie and congratulate her on her confirmation. Selfishly we hate to lose Annemarie as a valuable and integral member of our firm, but we know her temperament and sound judgment will make her a great federal judge,” said Jay Clark, managing member at Wallace Jordan. She also serves as the President of the YWCA Junior Board, a member of the Girls on the Run Board of Directors, and a member of the Mountain Brook City Schools Foundation Board.
Donald Trump nominates Ala. Solicitor General Andrew Brasher to District Judge
President Donald Trump on Tuesday announced his intent to nominate a twelfth wave of judicial nominees — 20 judges, including one from Montgomery, Ala. Alabama Solicitor General Andrew Brasher has been nominated to be District Judge for the Middle District of Alabama. Brasher is being nominated as a replacement to Brett Talley who had to withdraw his nomination last year after it was revealed he failed to disclose to the Judiciary Committee his wife worked for the White House counsel’s office. He was also rated “not qualified” by the American Bar Assn.’s screening committee having never tried a case. As Solicitor General, Brasher has argued in the U.S. Supreme Court, the U.S. Court of Appeals for the Eleventh Circuit, and the Alabama Supreme Court, tried cases in Federal and State courts, and won two “Best Brief Awards” from the National Association of Attorneys General. Prior to his appointment as Solicitor General in 2014, he served for several years as the Deputy Solicitor General. Before joining the Alabama Attorney General’s office, Brasher practiced in the litigation and white collar criminal defense practice groups in the Birmingham office of Bradley Arant Boult Cummings LLP. Upon graduation from law school, Brasher served as a law clerk to Judge William H. Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit. Brasher earned his B.A., with honors and summa cum laude, from Samford University, where he presently serves on the Board of Overseers, and his J.D., cum laude, from Harvard Law School, where he was a member of the Harvard Law Review and winner of the Victor Brudney Prize. Sen. Richard Shelby described the appointment as “great news” in a Facebook post. Great news from the White House today! Andrew Brasher of Montgomery has been nominated to be District Judge for the Middle District of Alabama. His experience in the courtroom will be valuable in this new role as he continues to serve Alabama. Mark Sloke of Mobile has also been nominated by the President to serve as the US Marshal for the Southern District of Alabama. I look forward to seeing him continue to enforce the law and protect our citizens in his new role.
Fight over legislative districts returns to district court
The fight over Alabama’s legislative districts is shifting back to Montgomery after a divided U.S. Supreme Court said a lower court must take another look at whether GOP lawmakers relied too heavily on race when they drew new district lines. James U. Blacksher, a lawyer for the Alabama Legislative Black Caucus, which filed the lawsuit against the plan, said they will fight to have the legislative districts redrawn after the case officially gets back to federal court next week. The caucus this past week presented a map of proposed new lines, which Blacksher said should be a starting point for negotiations. “Ultimately we are going to have to have another election,” Democratic Sen. Rodger Smitherman of Birmingham said. “It’s going to be difficult, if not impossible, to do what the court said without having new elections.” The Alabama Democratic Conference and the Alabama Legislative Black Caucus had challenged the lines that were the drawn in 2012 under the newly elected GOP legislative majority. The U.S. Supreme Court last month reversed a lower court ruling that upheld the plan, saying the court did not properly consider complaints that state officials illegally packed black voters into too few voting districts. Justices said the lower court should have looked at claims of racial gerrymandering on a district-by-district level, not just statewide. The Supreme Court majority also said Alabama took a position of prioritizing racial targets when drawing districts. Instead of asking how it could maintain the minority percentages in districts, justices said, the court should have asked what percentages the minority should have to elect their candidate of choice. “The issue now will be whether the plaintiffs proved any of these districts were drawn predominantly on race,” Alabama Solicitor General Andrew Brasher, who handles appellate litigation for the state. Brasher predicted that the map would ultimately be upheld. “The district court said there are a lot of other reasons to draw the lines that way.” Republicans said their plans complied with the voting rights law by preserving all the districts in which blacks were a majority and adjusting populations so that districts contained about the same number of people. The new plan allowed only a 2 percent population difference between districts, a much lower variance than previous plans. Black lawmakers said the new lines resulted in the “stacking and packing” of black voters into designated minority districts, limiting minority voters’ ability to influence elections elsewhere. Justices put a spotlight on Senate District 26, a district that includes most of the majority-black neighborhoods in Montgomery. “Of the 15,785 individuals that the new redistricting laws added to the population of District 26, just 36 were white — a remarkable feat given the local demographics,” justices wrote. The Supreme Court majority, in its opinion, said, “There is strong, perhaps overwhelming, evidence that race did predominate as a factor when the legislature drew the boundaries of Senate District 26.” “It was so obvious and so blatant what happened,” said Quinton Ross, the senator from Senate District 26. Plaintiffs said the doubt raised by justices over that specific district is a strong indicator that they will prevail on remand. “There will be a big ripple effect,” Blacksher said. “The problems they identified in Senate District 26 are identical to those in the other districts.” GOP legislative leaders said they think their map will ultimately be upheld. “I’m confident at the end of the day, district lines are going to stay like they are,” said Speaker of the House Mike Hubbard, an Auburn Republican. Republished with permission of The Associated Press.
