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Judge Grilled Over Past Tweets At Judicial Confirmation Hearing

Justice Don Willett appears before the Senate Judiciary Committee in Nov. 2017. (Screenshot)Justice Don Willett appears before the Senate Judiciary Committee in Nov. 2017. (Screenshot)

Texas Supreme Court Justice Don Willett, one of President Donald Trump’s nominees to the 5th U.S. Circuit Court of Appeals,  appeared Wednesday before the Senate Judiciary Committee, where Senate Democrats grilled him over statements made on his popular Twitter feed.

Willett appeared with James Ho of Gibson, Dunn & Crutcher, another nominee to the 5th Circuit, the New Orleans-based federal appeals court.

The justice has something of a cult following among students and practitioners — he maintains a Twitter account that traffics in law puns, pictures of his family, and pro-America gifs, prompting the Texas State Legislature to style Willett the state’s Tweeter Laureate in 2015. Legal ethicists cite his use of the platform as a standard of excellence for social media use by judges, though Senate Democrats mined material for questions from his feed.

Twitter notwithstanding, Willett’s judicial writings have attracted enthusiasm from libertarian legal circles. The justice’s 2015 concurring opinion in Patel v. Texas Department of Licensing, in which he suggested courts ought to apply greater scrutiny to government regulations of economic activity, is particularly popular in right-wing quarters. The Patel case involved a Texas regulation requiring that commercial eyebrow threaders obtain a cosmetology license from a beauty culture school. The licensure process involved 1,500 hours of instruction and a state-mandated exam.

Willett’s name appeared on President Donald Trump’s list of possible Supreme Court nominees during the 2016 presidential campaign.

University of Richmond School of Law Professor Carl Tobias, a judicial confirmation expert, noted that Ho and Willett were tapped for seats left open over several years because of Republican obstruction during the Obama administration.

“The Obama White House assiduously attempted to work with the Texas senators, but they never could agree on nominees, even though there were may well qualified district appointees, like [Judges] Saldana and Marmalejo, who could have been elevated,” he told The Daily Caller News Foundation.

Feinstein grilled Willett about a 1998 memo he produced as an aide to then-Texas Gov. George W. Bush, advising against the issuance of a proclamation honoring the Texas Federation of Business and Professional Women (TFBPW). The group had endorsed various liberal social causes including affirmative action.

“I resist the proclamation’s talk of ‘glass ceilings,’ pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/harassment and the need generally for better ‘working conditions’ for women (read: more government),” the memo reads.

The document ultimately suggests a proclamation might be issued if the text were re-worded to acknowledge the group’s nonpolitical work, or the accomplishments of professional women generally. Other members of Bush’s gubernatorial staff submitted letters to the Committee, explaining the proposed text of the proclamation deviated from office standards, warranting Willett’s intervention.

“Painting Judge Willett as someone indifferent to gender inequality would be a preposterous caricature of what was, in fact, a proper process,” Bush’s correspondence director Shirley Green wrote in a letter to the Committee, which was obtained by TheDCNF.

Willett told Feinstein that his mother, a widow who worked for years as a waitress at a Texas truck stop, suffered “every imaginable workplace indignity.” As such, the justice says he honors his mother’s life by serving on the board of several charities and nonprofits which advocate for women. Feinstein grew irritated as the exchange progressed, as the justice did not immediately address the substance of the memo.

Senate Minority Whip Dick Durbin took up Feinstein’s line of questioning, and asked Willett to disavow the document. The justice replied that the purpose of the memo was to explain that a gubernatorial proclamation was not the proper vehicle to acknowledge and honor the TFBPW’s work, since proclamations were typically reserved for nonpolitical subjects.

“Senator Feinstein, I tried,” Durbin said, as he concluded his questioning.

Democratic Sen. Patrick Leahy of Vermont asked Willett about a 2014 tweet that featured a Fox News story about a trans student in California, who was authorized to play on a high school softball team. The student, a biological male, identifies as female. Leahy suggested the tweet was disparaging of trans persons. Democratic Sen. Al Franken of Minnesota also asked questions relating to the tweet.

Willett said the tweet was a topical and timely reference to Alex Rodriguez’s suspension for the use of performance enhancing drugs, and suggested that Leahy — and the Alliance for Justice, a liberal group which first flagged the tweet — misunderstood the joke, which was made just days after Rodriguez dropped his legal fight against the suspension.

Franken told Willett that he believed the purpose of the tweet was to deride trans people.

Democrats elsewhere asked about another tweet in which Willett “joked” about a constitutional right to marry bacon. Some members of the panel interpreted the comment as a dig at same-sex marriage, as it was made shortly after the Supreme Court’s Obergefell ruling.

Wednesday’s hearing was the third time that the panel scheduled a single confirmation hearing featuring multiple nominees to a circuit court. Hearing featuring multiple appellate nominees occurred infrequently in the past under the leadership of both parties, but have never occurred thrice consecutively in modern history.

“There’s a point at which this whole process becomes just a joke of ramming people through,” Democratic Sen. Sheldon Whitehouse said, reviving criticisms he raised in previous hearings.

Earlier in the hearing, GOP Sen. Ted Cruz of Texas said the steady clip of confirmations would be one of the enduring accomplishments of the Trump administration.

“I believe the [administration’s] most longstanding and significant legacy will be the men and women confirmed to the federal bench,” he said.

Both nominees have elicited wide support from the Senate Republican caucus and are likely to be confirmed, though it unclear whether they will secure Democratic votes.

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Kevin Daley
the authorKevin Daley
Kevin J. Daley is the Daily Caller News Foundation's Supreme Court reporter. Follow him on Twitter @KevinDaleyDC.

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