Justice Don Willett – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Perhaps no other Trump nominee has the level of pre-nomination buzz as Willett.  The gregarious Texas Supreme Court Justice is particularly famous for his presence on Twitter, calling himself the “tweeter laureate of Texas.”[1]  Furthermore, Willett has attracted attention for his economically libertarian judicial philosophy and his presence on then-candidate Trump’s Supreme Court shortlist.[2]  In any case, his strongly held and demonstrated legal philosophies are likely to draw both controversy and opposition, making for a challenging confirmation process.

Background

Donny Ray Willett was born in Dallas, TX in 1966.  Willett attended Baylor University, graduating with a B.B.A. in 1988.  After graduating, Willett spent a year in Waco, TX, working as an LSAT instructor, a tutor, and a waiter at Steak and Ale Restaurant.  In 1989, Willett joined Duke University School of Law, getting a J.D. with Honors, and a M.A. in 1992.

After graduating, Willett clerked for the senior Judge Jerre Stockton Williams on the U.S. Court of Appeals for the Fifth Circuit, and then joined the Austin office of Haynes & Boone, LLP.

In 1996, Willett joined the Office of then-Governor George W. Bush as the Director of Research and Special Projects.  After Bush’s election to the Presidency, Willett served on the transition team, and moved to Washington D.C. to serve as Special Assistant to the President.

In 2002, Willett was tapped to be Deputy Assistant Attorney General at the Office of Legal Policy at the Department of Justice, handling both Justice policy and vetting judicial nominations. After a year there, Willett was hired by Texas Attorney General Greg Abbott to be the Deputy Attorney General for Legal Counsel.

In 2005, Willett was appointed by Governor Rick Perry to the Texas Supreme Court, filling a vacancy left by Priscilla Owen’s move to the Fifth Circuit.  He was narrowly elected to a full term in 2006, prevailing by a 51-45% margin over Democrat Bill Moody.  He was re-elected comfortably in 2012 and continues to serve on the Court.

History of the Seat

Willett has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on August 1, 2012 with Judge Emilio Garza’s retirement.  The Administration vetted Judge Xavier Rodriguez, a moderate Republican nominated to the U.S. District Court for the Western District of Texas by Bush, for the vacancy.[3]  Ultimately, no nomination was put forward by the Obama Administration for the vacancy and the seat was left vacant.

The Garza vacancy, along with a second Texas vacancy opened by the retirement of Judge Carolyn Dineen king, prompted a long negotiation involving Senators John Cornyn and Ted Cruz, as well as Texas Governor Greg Abbott, as the Trump Administration attempted to accommodate four candidates: Willett; former Texas Solicitor General James Ho; U.S. District Judge Reed O’Connor; and appellate attorney Andy Oldham.[4]  Willett and Ho were ultimately nominated on September 28, 2017.[5]

Political Activity

Willett serves as a Republican on the Texas Supreme Court (Texas judges are elected in partisan elections).  While initially appointed to the Court, Willett has campaigned for election to six-year terms on the court twice, winning with 51% in 2006, and 79% in 2012.

In his 2012 campaign, Willett ran numerous campaigns ads, championing descriptions of himself as “the judicial remedy to Obamacare,” and describing his efforts to keep the Ten Commandments on display.  Willett also unveiled endorsements from Abbott and the controversial Texas Lt. Gov. Dan Patrick.

Legal Career

With the exception of a short stint litigating at Haynes and Boone, Willett has spent virtually his entire pre-bench legal career in policy.  Willett began this stint as a policy advisor to then-Governor George W. Bush.  When Bush ran in the 2000 Presidential Election, Willett joined the campaign as a policy advisor, responsible for coordinating policy outreach to various interest groups and advocacy organizations.  After Bush’s election, Willett served on the transition team.

In 2001, Willett was hired by Bush to be Special Adviser to the President.  In this role, Willett sat on the Domestic Policy Council, as well as heading Bush’s Office of Faith-Based and Community Initiatives.  In 2002, Willett moved to the Department of Justice, heading the Office of Legal Policy.  In that capacity, Willett helped vet federal judicial nominees, as well as developing the PROTECT Act.

In 2003, Willett was hired by Abbott to be Deputy Attorney General for Legal Counsel.  In this capacity, Willett advised Abbott on various legal issues affecting the State of Texas.  Additionally, Willett, along with Cruz, filed an amicus brief at the Supreme Court opposing a suit arguing that the words “under god” in the Pledge of Allegiance violated the Establishment Clause of the U.S. Constitution.[6]  Willett also assisted in leading the State of Texas’ successful defense of its Ten Commandments monument at the U.S. Supreme Court.[7]

Jurisprudence

Willett has served on the Texas Supreme Court for more than twelve years.  The Texas Supreme Court has an exclusively civil docket, and as such, it has been on civil matters that Willett has developed a record.  Willett’s jurisprudence emphasizes limitations on the state’s police power, broad views of economic liberty and property rights.

Economic Liberty

Willett’s most famous opinion is likely his concurrence in Patel v. Texas Department of Licensing & Regulation, where he lays out his views on economic rights protected under the Constitution.  Patel involved a challenge to Texas’ licensing scheme for eyebrow threaders.[8]  The Texas Supreme Court upheld the challenge, holding that Texas’ licensing scheme was “so burdensome as to be oppressive” under the Texas Constitution.[9]  In concurrence, Willett, joined by Justices Debra Lehrmann and John DeVine, wrote:

“Self-ownership, the right to put your body and mind to productive enterprise, is not a mere luxury to be enjoyed at the sufferance of governmental grace, but is indispensable to human dignity and prosperity.”[10]

Willett went on to detail the history of Texas licensing programs, finally noting:

“…the Texas occupational licensure regime…[forces] many lower-income Texans to face a choice: submit to illogical bureaucracy or operate an illegal business?”[11]

Finally, Willett rejects what he terms “judicial passivity” deeming it “incompatible with individual liberty and constitutionally limited government.”[12]

In response, Chief Justice Nathan Hecht, himself a Republican, accused the majority of twisting the law to favor their own policy preferences, noting:

“Result is an inapt tool for shaping principle; it’s supposed to work the other way around.”[13]

Freedom of Speech

In Service Employees International Union 5 v. Professional Janitorial Services of Houston, Inc., Willett dissented from the Texas Supreme Court’s refusal to hear an appeal from a lower court ruling holding that professional websites that do not have the “primary business” of reporting the news do not qualify for the protections offered to “electronic media” under Texas law.[14]  In his dissent, Willett urged the Court to take the case and clarify the protections offered to blogs and other nontraditional news sources, noting:

“I doubt the Framers intended that First Amendment protections were meant solely for the institutional press and ‘professional’ journalists.”[15]

Tort & Discrimination Actions

In several cases, Willett has sided with defendants against plaintiffs alleging tort and discrimination claims.[16]  For example, in Mission Consolidated Independent School District v. Garcia, Willett held that an employee could not make a prima facie case of age discrimination where they had been replaced with an employee who was older than them.[17]  In dissent, Chief Justice Wallace Jefferson wrote:

“That Garcia did not establish the elements of a prima facie case means only that a court will not presume discrimination — it does not mean Garcia cannot possibly prevail. By equating the two inquiries, the Court dismisses Garcia’s claims prematurely and forces her to prove her case to establish jurisdiction.”[18]

Property Rights

In El Ali v. Texas, Willett dissented from the Texas Supreme Court’s refusal to hear a due process challenge to Texas’ civil forfeiture law.[19]  In his dissent, Willett argued that the law infringes on property owners’ rights by requiring them to prove their innocence to recover forfeited property.[20]

Tweets

In addition to his legal philosophy, Willett is known for his active presence on the social media platform Twitter.  Under the handle @JusticeWillett, Willett has tweeted on various subjects including sports, history, and politics.  Willett’s tweets have been described as “humorous,”[21] and “entertaining.”[22]

Notably, Willett issued a series of tweets mocking then-candidate Donald Trump in 2016, including satirizing Trump’s referral to Hillary Clinton as “low-energy” and his insistence that Mexico would pay for a U.S.-Mexico border wall.[23]  In fact, some commentators suggested that Willett’s slow path to the bench was the result of his anti-Trump tweets.[24]

Willett has reportedly agreed to stop tweeting as a condition of his nomination.[25]

Overall Assessment

Willett’s nomination has already drawn buzz from conservative and libertarian groups, as well as fierce opposition from civil rights groups and liberal interest organizations.  This is largely because, with Willett, what you see is what you get.  Willett has a demonstrated record as a strongly conservative jurist, and is likely to establish an equally conservative profile on the federal bench.

For critics looking to make a case against Willett, they will likely argue that his concurrence in Patel shows a tendency to reject judicial restraint, and embrace activism from the bench.  It is possible, although unlikely, that some Republicans, who favor the Bork model of judicial restraint, may see this as a reason to vote against Willett.

Nevertheless, one key distinction must be noted.  On the Texas Supreme Court, Willett sat as one of the primary arbiters of Texas law.  On the Fifth Circuit, Willett is bound not only by the U.S. Supreme Court, but also by prior circuit precedent.  As such, Willett will have far less opportunity to shape a Lochnerian revolution from the appellate bench.

Overall, Willett is likely to have a similar profile on the bench to the now retired Judge Janice Rogers Brown, another former state supreme court justice appointed to the federal court of appeals.  Like Brown, Willett is likely to be an advocate of “judicial engagement” from the bench.  However, Willett’s ultimate success in this endeavor will be limited by the limited role of the federal judiciary.  If Willett is ever nominated for the Supreme Court, however, all bets are off.


[1] Alex Pappas, Trump Taps ‘Tweeter Laureate of Texas’ Willett for Federal Appeals Court, Fox News, Sept. 28, 2017, http://www.foxnews.com/politics/2017/09/28/trump-taps-tweeter-laureate-texas-willett-for-federal-appeals-court.html.  

[2] Eric Benson, Don Willett’s Quiet Revolution, Texas Observer, Nov. 17, 2016, https://www.texasobserver.org/don-willett-trump-supreme-court/.  

[3] Debra Cassens Weiss, 5th Circuit Nominees May Include a GOP Judge, ABA Journal, Dec. 10, 2013, http://www.abajournal.com/news/article/5th_circuit_nominees_may_include_a_gop_judge.  

[4] Zoe Tillman, Political Drama in Texas Has Left Trump Struggling to Fill Court Seats, Buzzfeed, Sept. 19, 2017, https://www.buzzfeed.com/zoetillman/political-drama-in-texas-has-left-trump-struggling-to-fill?utm_term=.faDyjV6gGd#.td4DkPEl10.  

[5] Zoe Tillman, The Stalemate Over Texas Court Vacancies is Over, As Trump Announces Nominess, Buzzfeed, Sept. 28, 2017, https://www.buzzfeed.com/zoetillman/stalemate-over-texas-court-vacancies-ends-as-trump?utm_term=.irqgDE26xn#.oaPzmk365o.  

[6] Brief for the State of Texas, et al. as Amicus Curiae supporting Petitioner, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).

[7] Van Orden v. Perry, 545 U.S. 677 (2005).

[8] See Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69 (2015).

[9] See id. at 88.

[10] See id. at 92 (Willett, J., concurring).

[11] Id. at 108.

[12] Id. at 137.

[13] Id. at 145 (Hecht, C.J., dissenting).

[14] See 481 S.W.3d 210 (Tex. 2014) (Willett, J., dissenting from denial of pet.).

[15] Id. at 213.

[16] See Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014); Mission Consolidated Ind. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012); Waffle House Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010).

[17] Mission Consolidated Ind. Sch. Dist. v. Garcia, 372 S.W.3d 629, 643 (Tex. 2012)

[18] Id. at 644 (Jefferson, C.J., dissenting).

[19] See El Ali v. Texas, 428 S.W.3d 824 (Tex. ) (Eid, J., concurring).

[20] Id. at 828-29.

[21] Greg Price, Trump Administration Tells Justice Dan [sic] Willett to Shut Down His Twitter, Ignoring the President’s Tweets, Newsweek, Oct. 20, 2017, http://www.newsweek.com/trump-twitter-judge-shut-down-689554.

[22] Ken Herman, Twitter Silence From Texas Tweeter Laureate, Austin American Statesman, Oct. 13, 2017, http://www.mystatesman.com/news/opinion/herman-twitter-silence-from-texas-tweeter-laureate/tSDVSBXRZ25hR3RHuCA4II/.

[23] Bobby Blanchard, 9 Times Texas Supreme Court Justice Don Willett Dissed Donald Trump on Twitter, The Dallas Morning News, May 2016, https://www.dallasnews.com/news/politics/2016/05/18/9-times-texas-supreme-court-justice-don-willett-threw-shade-at-donald-trump-on-twitter.

[24] See, e.g., Dianna Wray, Is Don Willett Being Kept From the Federal Bench Because of His Trump Tweets, Houston Press, June 20, 2017, http://www.houstonpress.com/news/is-texas-supreme-court-justice-don-willett-not-on-the-fifth-circuit-us-court-of-appeals-because-of-donald-trump-9529982.  

[25] See Price, supra n. 21.

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