Report: Andrew Brasher

Updated: Feb 13, 2020

Brasher has fought against rights for communities of color, women and LGBTQ communities, as well as consumer, worker and environmental protections.

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From the Alliance for Justice:


In Alabama, and across the country, Brasher has fought against rights for communities of color, women and LGBTQ communities, as well as consumer, worker and environmental protections. Brasher has a long record of affiliations with far-right groups, including the Koch-backed and Scott Pruitt-led “Rule of Law Defense Fund.”


Further, in his personal capacity, Brasher has questioned the validity of Planned Parenthood v. Casey. In 2014, Brasher, on behalf of the Attorney General of Alabama, told an anti-choice crowd, “The ACLU and Planned Parenthood want a fight and we will give them one.” Given these views, it is no surprise that as Solicitor General of Alabama, Brasher has consistently fought against rights of women. He challenged critical contraceptive coverage under the Affordable Care Act and defended unconstitutional laws. For example, Brasher defended a law, found unconstitutional by a court, that would allow a judge to appoint an attorney for a fetus and the district attorney to call witnesses to testify regarding a mother’s maturity.


Brasher has also fought against workers, consumers, and the environment. He defended a law that retaliated against the Alabama Education Association by restricting its members’ ability to pay dues to the Association unless it stopped engaging in any political activity. He has repeatedly opposed the right of individuals to band together to hold corporations accountable. He challenged the constitutionality of the Dodd-Frank Act and has attacked safeguards that protect America’s clean air, streams, wetlands and safe drinking water.

Finally, Brasher repeatedly defended unconstitutional practices that raise questions regarding his commitment to a constitutional criminal justice system. He defended the practice that allowed judges to overrule juries and impose the death penalty. He sought the death penalty for a defendant with mental illness despite the state’s failure to provide sufficient access to a competent psychiatrist as required under federal law, and he advocated for the position that children can be imprisoned for life with no possibility of parole.

The Alliance for Justice background report on Andrew Brasher is here.

From the People for the American Way:

Judicial Nominee Andrew Brasher’s Work in Alabama Reflects His Own Extreme Vision of the Law—Still True

As a threshold matter, the Senate should not be processing any lifetime judicial nominees while President Trump is under the cloud of impeachment for actions undermining the core foundation of our constitutional democracy: free and fair elections. But since Republican leadership in the Senate has chosen to proceed nonetheless, we take this opportunity to address Brasher’s nomination in particular.

As background, this nomination continues two disturbing trends. First, Brasher is yet another circuit court nominee selected by this White House (and considered by the Senate) over the objection of a Democratic home state senator—in this case, Sen. Doug Jones. Second, although President Trump has had a record-breaking 50 circuit court nominees confirmed in just three years—that’s one quarter of the entire active circuit court judiciary—not one of his circuit nominees has been African American.

In 2011, Brasher chose to leave private practice at a major law firm in Birmingham to join the solicitor general’s office, where his sole client would be the state of Alabama—a state well known for its hostility to voting rights, abortion rights, civil rights, LGBTQ equality, immigrant rights, and other core constitutional values. His work reflected his own extreme vision of the law and demonstrated that he was unqualified for a lifetime position at any level in our federal judicial system. Therefore, we opposed his confirmation last year to his current position as a federal judge in the Middle District of Alabama.

His scant record in the few months he has been on the bench has not given us reason to believe we were wrong, and it certainly does not warrant a promotion to an even more important and influential judicial position.

From the People for the American Way:


Brasher submitted an amicus brief for Alabama in Shelby County v. Holder, urging the Supreme Court to gut the heart of the Voting Rights Act—the preclearance requirement. Congress had recognized preclearance as still necessary in 2006 to prevent discriminatory voting laws from going into effect. This decision was based on an enormous record of such state and local laws in the modern era. Nevertheless, in arguing that Congress had acted unconstitutionally, Brasher argued that Alabama today “is not the Alabama of 1965—or of 1970, 1975, or 1982.”


The Supreme Court gutted preclearance in what history will record as one of its most infamous acts, opening the door for rampant voting discrimination. Yet at his December hearing, Brasher could not give even one example of the many discriminatory voting restrictions instituted afterShelby County. He also was unable to name any important recent voting rights decisions arising from Alabama or the other states of the Eleventh Circuit.

In fact, as state solicitor general, Brasher defended a racial gerrymander process that the Supreme Court subsequently struck down in Alabama Legislative Black Caucus v. Alabama. The state legislature had enacted a redistricting plan that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black, a process some have called bleaching. Brasher argued erroneously that this was necessary to comply with the then-required preclearance provision of the Voting Rights Act, a rationale the Supreme Court rejected in 2015.

Afterward, he authored an article for SCOTUSblog criticizing two subsequent racial gerrymandering cases: Cooper v. Harris and Bethune-Hill v. Virginia State Board of Elections.arguing that the Supreme Court should have made it harder for those harmed by racial gerrymandering to vindicate their rights. Specifically, he criticized the Court for not requiring plaintiffs to design and submit an alternative plan in order to get relief from a federal court.v This would be an enormous and needless hurdle. In Brasher’s December 2019 circuit court committee hearing, Sen. Coons asked why a Fourteenth Amendment claim should be contingent on a plaintiff’s ability to propose the remedy to fix unconstitutional governmental action.

#RFingTheCourts #WhitewashingTheBench

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