Andrew Oldham – Nominee for the U.S. Court of Appeals for the Fifth Circuit

Young, well-credentialed, and fiercely conservative, Andy Oldham is exactly the type of nominee that Trump promised to name to the federal bench if elected.  While Oldham’s involvement in aggressive conservative litigation may have secured him the nomination, it is likely to draw strong opposition from Senate Democrats.

Background

Andrew Stephen Oldham was born in Richmond, VA on December 15, 1978.  Oldham received a B.A. with Highest Honors from the University of Virginia in 2001, and then received a Master of Philosophy from the University of Cambridge in 2002.[1]  Oldham then attended Harvard Law School, graduating magna cum laude in 2005.  (At Harvard Law, one of Oldham’s professors was U.S. Sen. Elizabeth Warren).[2]

After law school, Oldham moved to Washington D.C. to clerk for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit.  Oldham then moved to the Office of Legal Counsel (OLC), working under acting Assistant Attorney General Stephen Bradbury.  In 2008, Oldham secured a clerkship with Justice Samuel Alito on the U.S. Supreme Court.[3]

In 2009, Oldham joined the law firm Kellogg Huber as an Associate.  Just three years later, Texas Attorney General Greg Abbott hired Oldham as Deputy Solicitor General, working with fellow judicial nominee Cam Barker.

In 2015, when Abbott was elected to be Texas Governor, Oldham became his Deputy General Counsel.[4]  Oldham became the Acting General Counsel in 2017 and the General Counsel in 2018.

History of the Seat

Oldham has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on April 2, 2018 with Judge Edward Prado’s resignation to be the U.S. Ambassador to Argentina.  However, Oldham had been on the White House’s radar much earlier.  In 2017, Oldham was a finalist alongside Texas Supreme Court Justice Don Willett; U.S. District Judge Reed O’Connor; and appellate attorney James Ho to fill two Texas vacancies on the Fifth Circuit.[5]  Ho and Willett were ultimately nominated on September 28, 2017 and confirmed in December 2017.[6]  Oldham remained under consideration, however, and was nominated to the Prado seat on February 15, 2018.

Political Activity

Oldham does not have a long donation history, with his only donation of record being a $500 contribution to Cruz during his presidential campaign in 2016.[7]  Additionally, Oldham served as an envelope stuffer for Republican George Allen’s senatorial campaign in 2000.[8]

Oldham has also been a member of the Federalist Society for Law and Public Policy Studies, a conservative legal organization that has produced many Trump nominees, since 2002.[9]  He has also been a member of the National Rifle Association since 2015.[10]

Legal Experience

Oldham has served in both advisory positions: at the Office of Legal Counsel and then as Abbott’s General Counsel; and litigation positions: at Kellogg Huber and the Texas Attorney General’s Office.  While Oldham has engaged substantively with the law in each of these positions, the bulk of his most controversial (and significant) cases have been handled as Deputy Solicitor General of Texas, a role in which Oldham spearheaded much conservative activist litigation, as well as amicus work handled as Abbott’s Counsel.  Below, we highlight some of Oldham’s work on hot-button issues:

DAPA & Immigration

Oldham was lead counsel in challenging the Obama Administration’s Deferred Action for Parental Accountability (DAPA), which deferred action status for deportation purposes for immigrants with children who were American citizens or lawful permanent residents.[11]  Oldham drafted the initial complaint and successfully argued for a nationwide injunction before Judge Andrew Hanen.[12]

Abortion and Healthcare

As Deputy Solicitor General of Texas, Oldham managed the defense of Texas laws that critics alleged impeded a woman’s right to have an abortion.  Oldham was part of the legal team that successfully persuaded the Fifth Circuit to overturn a trial injunction and find that Texas laws requiring abortion providers to have admitting privileges in local hospitals and restricting medication abortions were constitutional.[13]  Oldham was also involved in the defense of the restrictions under an “as-applied challenge” brought by a McAllen Texas abortion clinic.[14]  The Supreme Court would eventually find that the provisions created an “undue burden” on a woman’s right to choose.[15]

Oldham was also lead counsel in a challenge to the Affordable Care Act under the “Origination Clause” of the Constitution.[16]  Shortly after Oldham left the case, the Fifth Circuit dismissed the challenge for lack of standing.

Habeas Rights

As Deputy Texas Solicitor General, Oldham argued two cases before the Supreme Court, in both cases arguing, unsuccessfully, for the barring of habeas claims raised by the plaintiffs.  In the first case, a 5-4 majority of the Supreme Court ruled against Oldham’s position, finding that the ineffective assistance of state habeas counsel can excuse the procedural default of a habeas claim.[17]  In the second case, a 6-3 majority held that a habeas inmate did not need to cross-appeal a claim he had lost on the trial level in order to raise it during a defense of claims he had won.[18]

Second Amendment

As Deputy General Counsel for Governor Abbott, Oldham filed an amicus brief on behalf of the Governors of Texas, Louisiana, Maine, Mississippi, Oklahoma, and South Dakota in a Second Amendment challenge to a California law requiring good cause to carry a concealed firearm.[19]  Despite Oldham’s and other briefs filed supporting the Second Amendment challenge, the Ninth Circuit held en banc that the Second Amendment does not protect a right to concealed carry.[20]

Campaign Finance

In the Texas Attorney General’s Office, Oldham helped defend Texas’ campaign finance laws against First Amendment challenges brought by a group of nonprofits and general-purpose political committees.[21]  The plaintiffs challenged Texas’ ban on corporate contributions for issue-oriented general-purpose committees, as well as requirements that the committees have appointed treasurers, collect ten contributions, and wait sixty days before exceeding $500 in contributions and expenditures.[22]  In the challenge defended by Oldham, the Fifth Circuit struck down the ten contribution limit and the sixty day waiting period but upheld the other requirements.[23]

Environmental & Administrative Law

At the Texas Attorney General’s Office, Oldham helped craft the challenge to greenhouse gas rules promulgated by the EPA under the Clean Air Act.  Specifically, Oldham focused on the challenge to the EPA “tailoring” rule, which determined which sources emitting air pollutants were required to get permits, and argued that the rule should not be subjected to Chevron deference.  The Supreme Court struck down the “tailoring” rule by a 5-4 margin.[24]

Overall Assessment

Oldham, with his impeccable academic credentials, his youth, and future Supreme Court potential, was always going to attract attention in the confirmation process.  However, given Oldham’s involvement in conservative impact litigation, his nomination is likely to be deeply controversial.

In particular, Oldham’s role in litigation against DAPA, and EPA rules, as well as his role defending abortion restrictions that were struck down as unconstitutional will be argued to suggest that he is a conservative extremist.  Democrats may note that Oldham had an unusually active role in shaping and filing litigation intended to further conservative policy goals and stymie liberal ones.  As such, they will argue that Oldham will continue that goal on the bench and be a judicial activist.

Oldham’s supporters, including Cornyn and Cruz, who sit on the Senate Judiciary Committee, will undoubtedly argue that it is inappropriate to impute a lawyer’s positions on behalf of his client to the lawyer himself.  However, as Cruz himself voted against Trump nominee Mark Bennett based on stances he took as Hawaii Attorney General, Democrats may decide that what’s sauce for the goose is sauce for the gander.  As such, Oldham’s confirmation will ultimately turn on his decisions rather than his qualifications.


[1] Sen. Comm. on the Judiciary, 115th Cong., Andrew Oldham: Questionnaire for Judicial Nominees 1.

[2] Fred Thys, Warren’s Former Students See Her As Anything But ‘Elitist’, WBUR, Apr. 23, 2012, http://legacy.wbur.org/2012/04/23/warren-popular-former-students.

[3] See Oldham, supra n. 1 at 2.

[4] Id.

[5] 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.

[6] 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.

[8] Oldham, supra n. 1 at 14.

[9] See id. at 5.

[10] Id.

[11] Texas v. United States, 86 F. Supp. 591 (S.D. Tex. 2015) (issuing a preliminary injunction against DAPA).

[12] See id.

[13] Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014).

[14] Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673 (W.D. Tex. 2014).

[15] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[16] Holtz v. Burwell, 784 F.3d 984 (5th Cir. 2015).

[17] Trevino v. Thaler, 133 S. Ct. 1911 (2013).

[18] Jennings v. Stephens, 135 S. Ct. 793 (2015).

[19] Peruta v. Cnty. of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc).

[20] See id. at 924.

[21] Catholic Leadership Coalition of Texas v. Reisman, et al., 764 F.3d 409 (5th Cir. 2014).

[22] See id. at 414.

[23] Id.

[24] Texas v. EPA; Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).

Judge Kurt Engelhardt – Nominee for the U.S. Court of Appeals for the Fifth Circuit

When Kurt Engelhardt was tapped for the federal bench in 2001, the young conservative looked poised for a swift elevation to the Fifth Circuit, and potentially even further.  Unfortunately, no Louisiana vacancy arose during the Bush Presidency and the election of Barack Obama foreclosed further opportunities.  With the election of Donald Trump, Engelhardt is getting an opportunity for elevation sixteen years after his initial court appointment.

Background

Kurt Damian Engelhardt was born in New Orleans on April 21, 1960.  Engelhardt attended the American Academy of Dramatic Arts and the University of New Orleans before graduating from Louisiana State University in 1982.  After graduating, Engelhardt joined Louisiana State University Law School, getting a J.D. in 1985.

After graduating, Engelhardt completed a two-year clerkship with Judge Charles Grisbaum on the Louisiana Fifth Circuit Court of Appeal, and then joined the Metairie office of Little & Metzger, APLC.  In 1992, Engelhardt joined Hailey, McNamara, Hall, Larman, & Papale, L.L.P. as an Associate.  In 1998, Engelhardt became a Partner at the firm.

On September 4, 2001, Engelhardt, then only 41, was tapped by President George W. Bush for a vacancy on the U.S. District Court for the Eastern District of Louisiana vacated by Judge Morey Sear.  Engelhardt’s nomination was championed by then-U.S. Representative David Vitter, who was a close friend.[1]  Engelhardt was confirmed unanimously by the Senate on December 11, 2001.  He became Chief Judge for the Eastern District in 2015 and serves in that capacity today.

History of the Seat

Engelhardt has been nominated for a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on with Judge Edith Brown Clement’s announcement of her intent to take senior status upon confirmation of her successor.  Due to the nature of Clement’s announcement, the vacancy will not open until Engelhardt is confirmed.

In February and March 2017, Engelhardt conducted meetings with all the members of Louisiana’s congressional delegation other than Democratic Representative Cedric Richmond.[2]  In May 2017, Engelhardt interviewed with a judicial selection committee set up by Sen. Bill Cassidy (R-LA).[3]  In June 2017, Engelhardt interviewed with the White House Counsel’s Office, and was nominated on October 5, 2017.

Political Activity

Engelhardt was active in the Louisiana Republican Party before his elevation to the bench, volunteering for various Republican campaigns and serving as Vice President of the Jefferson Parish Young Republicans.[4]  Engelhardt was particularly active in Vitter’s campaign serving as Chairman of his state legislative campaign committee and as Treasurer during Vitter’s congressional bids.[5]  Engelhardt has also donated to Vitter’s campaign, including a $1000 a few months before Engelhardt was nominated to the federal bench.[6]

Legal Career

After his clerkship, Engelhardt’s initial position was with Little & Metzger, APLC, where he worked in commercial litigation, handling contracts, business litigation, and bankruptcy.[7]  Among the cases he handled there, Engelhardt represented plaintiffs in a contract dispute who alleged material misrepresentations during the execution of the purchase contract.[8]

In 1992, Engelhardt joined the Hailey McNamara law firm.  There, Engelhardt continued a focus on commercial litigation, representing insurance companies, federal contractors, and shipyards.  While Engelhardt initially practiced only in the Eastern District of Louisiana, his practice eventually grew to envelop state court matters as well.[9]

Jurisprudence

Engelhardt has served as a judge on the U.S. District Court for the Eastern District of Louisiana for the last sixteen years.  In this role, Engelhardt has presided over hundreds or criminal and civil cases, including seventy six that have gone to verdict or judgment.[10]  We have summarized some of Engelhardt’s most significant cases below.

Danziger Bridge

In perhaps his most famous case, Engelhardt presided over the trials of New Orleans police officers charged in the “Danziger Bridge Incident”, where officers shot and killed unarmed storm survivors during Hurricane Katrina.[11]  In one of the trials, Engelhardt declared a mistrial based on the federal prosecutor’s mentioning “the name of a man who was beaten to death” in an unrelated case.[12]  In 2012, Engelhardt sentenced four of the officers to 38 to 65 years in prison for the shootings, while sentencing a fifth officer to five years for covering up the shootings.[13]  In sentencing the officers, Engelhardt criticized the prosecution for their reliance on cooperating witnesses and mandatory minimum sentences, indicating that he would likely have offered far lower sentences.[14]

A few months after the sentencing, news broke that key prosecutors in the U.S. Attorney’s office had engaged in a series of anonymous posts at news sites about defendants they were charging.[15]  In response to the news, the Danziger defendants moved for a new trial while prosecutors argued that there was no evidence that the anonymous posts had affected the verdicts.  In 2013, Engelhardt granted the motion for a new trial, noting:

“Re-trying this case is a very small price to pay in order to protect the validity of the verdict in this case, the institutional integrity of this Court, and the criminal justice system as a whole.”[16]

Engelhardt’s ruling drew criticism from the Washington Post Editorial Board, who called his reasoning “unconvincing in the extreme.”[17]

In 2016, Engelhardt accepted guilty pleas from the five Danziger defendants, speaking out at the sentencing against the Department of Justice and the conduct of then Assistant Attorney General Tom Perez, who Engelhardt argued, had covered up prosecutorial misconduct in the case.[18]

British Petroleum (Rainey)

Engelhardt presided over the trial of David Rainey, a vice president at British Petroleum who was charged with lying to investigators in the aftermath of the Deepwater Horizon oil spill.[19]  Before trial, Engelhardt dismissed the lead count of the indictment: obstruction of Congress, only to see the dismissal overturned by the Fifth Circuit.[20]  Nevertheless, Engelhardt dismissed the count again on the first day of trial.[21]

The jury ultimately acquitted Rainey of the remaining counts of lying to investigators.[22]  In dismissing the jury, Engelhardt noted that he “agree[d] with the verdict.”[23]

FEMA Trailer Formaldehyde Litigation

Engelhardt presided over a part of a multidistrict lawsuit brought against FEMA, trailer manufacturers, and contractors for providing trailers contaminated with formaldehyde after Hurricanes Katrina and Rita.[24]  Early in the case, Engelhardt held that the hundreds of claims could not be considered a class action due to the uniqueness of each plaintiff’s situation.[25]  The claims ultimately ended in a settlement.

Overall Assessment

With sixteen years on the bench, Engelhardt has a long record of jurisprudence demonstrating a conservative judicial philosophy.  As such, one can conclude that Engelhardt would maintain a conservative voice on the Fifth Circuit, similar to Judge Clement, whom he would replace.

Depending on your perspective, Engelhardt’s conduct in the Danziger and Rainey trials are either a demonstration of those conservative values, or a deviation from them.  Some could argue that, in those cases, Engelhardt stood up to overzealous prosecutors and maintained the rule of law.  Others can counter that Engelhardt further denied justice to minorities by going out of his way to accommodate police officers and corporate defendants.

Ultimately, given Engelhardt’s mostly uncontroversial tenure on the District Court, he is likely to move through the confirmation process smoothly, and maintain the conservative majority on the Fifth Circuit.


[1] Stephanie Grace, ‘Fascinating Prospect’ David Vitter, President Obama Might Find Common Ground on New Orleans Judge, The Advocate, July 22, 2015, http://www.theadvocate.com/baton_rouge/opinion/stephanie_grace/article_017dafb2-2692-5a5b-a6fc-2b4763ed5aaf.html.  

[2] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 69-70.

[3] See id. at 70.

[4] See id. at 51-52.

[5] Id. at 51.

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=kurt+engelhardt&order=desc&sort=D (last visited Jan. 7, 2017).

[7] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 53.

[8] See Ins. Underwriters Ltd. v. Oxford Mgmt., Inc., No. 87-13771 (La Civ. Dist. Ct.).

[9] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 53-54.

[10] Id. at 17.

[11] Patrik Jonnson, Danziger Bridge Retrial Takes New Orleans Back to Katrina Chaos, Christian Science Monitor, Sept. 19, 2013.

[12] Mistrial for Officer in Katrina Bridge Shootings Inquiry, Charleston Gazette, Jan. 28, 2012.

[13] Bloomberg News, Ex-cops Get Prison for Katrina Slayings, Windsor Star, Apr. 5, 2012.

[14] Campbell Robertson, Five Ex-Officers Sentenced in Katrina Shootings, N.Y. Times, Apr. 5, 2012.

[15] Editorial Desk, Perfidious Prosecutors, N.Y. Times, Dec. 3, 2012.

[16] United States v. Bowen, 969 F. Supp. 2d 546, 627 (E.D. La. 2013).

[17] Editorial Board, Injustice Restored, Wash. Post, Sept. 22, 2013.

[18] Denis Slattery, Interior Boss Ripped in Cop Katrina Slays, N.Y. Daily News, Apr. 24, 2016.

[19] See United States v. Rainey, No. 12-cr-291 (E.D. La.).

[20] Brian M. Heberlig, Congressional Gamesmanship Leads to an Acquittal in Deepwater Horizon Case, United States v. David Rainey: A Case Study, 20 Berkeley J. Crim. L. 260 (Fall 2015).  See also United States v. Rainey, 757 F.3d 234 (5th Cir. 2014).

[21] See id.

[22] Former BP Executive Found Not Guilty of Making False Statement Over Oil Spill, thespec.com, June 5, 2015.

[23] Id.

[24] See In re FEMA Trailer Formaldehyde Prod. Liab. Litig., MDL No. 07-1873 (E.D. La.).

[25] Class Action Denied in FEMA Trailer Suit, Wash. Post, Dec. 30, 2008.

Kyle Duncan – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Kyle Duncan, nominated by President Trump to the Fifth Circuit, is an experienced Supreme Court advocate who has built a reputation by promoting conservative religious causes through litigation and advancing prosecution-friendly positions in criminal cases. In particular, Duncan has spent much of his recent career fighting to narrow protections for reproductive freedom and LGBT rights. While the Fifth Circuit is already a conservative court, Duncan’s confirmation would add a uniquely conservative perspective.

Background

Stuart Kyle Duncan was born in 1972 in Baton Rouge, Louisiana.[1] He graduated summa cum laude from Louisiana State University in 1994 and received his law degree in 1997 from the same institution, where he served on the Louisiana Law Review and was inducted into the Order of the Coif.[2] After receiving his J.D. in 1997, he clerked for Fifth Circuit Judge John M. Duhé, Jr., in Louisiana.[3] From 1998-2002 he had a series of relatively short stints in Texas as an associate working on appellate matters at Vinson & Elkins LLP in Houston; as Assistant Solicitor General in Austin; and as an associate at Weil, Gotshal & Manges LLP in Austin.[4] In 2002, he became an “Associate-in-Law” (preparing a teaching career) at Columbia Law School, receiving his L.L.M. from that institution in 2004.[5] He taught at the University of Mississippi School of Law from 2004-2008, then served as Appellate Chief (essentially the solicitor general)[6] for Louisiana’s AG’s office from 2008-2012.[7] After that he began what would become his most publicly notable work, serving from 2012-2014 as general counsel (leading the litigation team) for the Becket Fund for Religious Liberty,[8] a “non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.”[9] He left Becket in 2014 to open up his own shop, Duncan PLLC, which today exists as Schaerr Duncan LLP, where he continues work “in the same genre” as he handled “while in government practice and at Becket–namely civil and criminal litigation, typically concerning federal constitutional issues and primarily, but not exclusively, at the appellate level.”[10]

Duncan is a member of the ABA’s Committee on the Relationship of the Legislative, Executive, and Judicial Branches.[11] He is also a member of the Federalist Society (a conservative law and policy group whose membership has yielded numerous Trump nominees)[12] and of the Knights of Columbus,[13] “an international organization of nearly 2 million Catholic men whose principal work involves helping others in need.”[14]

Duncan was a poll watcher for Mitt Romney’s presidential campaign in 2012, and in 2016 he was a member of the religious liberty advisory board for Marco Rubio’s presidential campaign.[15]

History of the Seat

Duncan was nominated to a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit. The seat opened up with Judge W. Eugene Davis’s move to senior status on December 31, 2016.  Because the seat opened up so late in the Obama Administration, no nominee was put forward until Duncan was nominated on October 2, 2017.

Legal Career

Duncan’s most notable representations in recent history have been in opposition to reproductive freedom and the rights of LGBT people. (Disclosure: In many of the cases cited below, the ACLU–for whom I work–was on the opposite side of the litigation.)

Since leaving the Becket Fund, Duncan has devoted considerable time in cases involving transgender rights. For example, Duncan represented a Virginia school board that refused to let transgender male student Gavin Grimm use the male restroom at school. The Supreme Court did not ultimately issue a merits determination in that case. Duncan also represented North Carolina’s speaker of the House and the president pro tem of the Senate in Carcaño v. McCrory, [16] a suit challenging North Carolina’s House Bill 2, which blocked transgender people from accessing restrooms and other facilities consistent with their gender identity and prevented local governments from protecting LGBT people from discrimination in a variety of settings, and HB 2’s replacement law, HB 142.

The plaintiffs in Carcaño, represented by the ACLU and Lambda Legal, contended among other things that denying transgender people access to restrooms consistent with their gender identity violates their rights under the Equal Protection and Due Process Clauses and Title IX.[17] In his intervention motion on his clients’ behalf, Duncan argued that the plaintiffs’ legal theory was  “radical” and “subjects every North Carolina female” using public facilities “to a heightened risk of sexual predation” by men falsely claiming to be women.[18] In the motion, Duncan also  repeatedly put quotation marks around words such as “woman” and “identify” and the phrase “gender identity.”[19] Despite Duncan’s characterization, the district judge, appointed by George W. Bush, entered a preliminary injunction as to the plaintiff’s Title IX claim,[20] in accordance with the increasing number of courts who are finding that similar restrictions preventing transgender students from accessing restrooms consistent with their gender identity violate Title IX and the Equal Protection Clause.[21]

Throughout the litigation, Duncan’s ultimate legal position–increasingly rejected by courts[22]–was that discrimination against transgender people is subject to the most lenient form of judicial review, rational-basis review. Moreover, Duncan rejects the application of the sex-stereotyping theory of sex discrimination (from the Supreme Court’s Price Waterhouse v. Hopkins case) to transgender people. At the preliminary-injunction hearing, Duncan argued that transgender women are not women and that transgender men are not men, and that laws like North Carolina’s don’t have anything to do with sex stereotypes. To Duncan, the cases applying Price Waterhouse to transgender people were those “where the discriminator has discriminated on the basis of mannerisms, or the appearance, the behavior of a person. Just to put it in plain terms, I’ve discriminated against a man because that man doesn’t act enough like a man,” or “[w]e don’t think a man should look like that.”[23] Duncan distinguishes North Carolina’s laws by saying that under those provisions, “[i]It doesn’t matter how you present as a man, it doesn’t matter how masculine you are, it doesn’t matter how high your voice it, it doesn’t matter. Men use the men’s bathroom. The same for women. That’s not sex stereotyping. That’s the opposite of sex stereotyping.”[24]

In addition to his work limiting transgender rights, Duncan has also fought the legal recognition of same-sex families. Duncan was counsel of record for the respondent in V.L. v. E.L., which concerned a lesbian couple’s second-parent adoption, which is an adoption by someone who is not the spouse of the child’s legal parent. (At the time of the adoption, V.L. could not legally marry biological mother E.L. in Alabama, but the two sought to raise their child together.) V.L. and E.L. secured the adoption in Georgia, but E.L. later tried to disrupt the arrangement by arguing that Alabama did not have to give full faith and credit to the Georgia court’s judgment. In his response to the cert petition, Duncan argued that the Georgia court lacked jurisdiction to grant the adoption, and therefore Alabama did not have to honor it.[25] Duncan criticized V.L. for “extravagantly” claiming that the Alabama Supreme Court’s decision “grossly deviates” from the Supreme Court’s full-faith-and-credit jurisprudence, and said she was overstating the harms that the Alabama court’s decision would cause.[26] Without granting oral argument, the Supreme Court summarily reversed in a unanimous decision, rejecting Duncan’s arguments, stating that under Georgia law, superior courts have subject-matter jurisdiction to decide “all matters of adoption,” and whatever the merits of the Georgia court’s judgment, that judgment was within that statutory grant of jurisdiction and had to be given full faith and credit.[27]

Perhaps Duncan’s most famous case was serving as party counsel to Hobby Lobby Stores and its owners in their eponymous challenge to the Affordable Care Act’s contraception mandate.[28] In Hobby Lobby, the Supreme Court struck down the requirement as to closely held corporations whose owners objected to providing contraceptive coverage on religious grounds.[29] Duncan’s subsequent forays into reproductive-freedom law included filing an amicus brief in the Supreme Court’s latest abortion case, Whole Woman’s Health v. Hellerstedt, on behalf of the Association of American Physicians and Surgeons, Inc.,[30] and representing his former boss–the State of Louisiana–in its defense of a challenge to its requirement–not unlike the one struck down in Whole Woman’s Health–that doctors performing abortions have admitting privileges at a nearby hospital. In that case, June Medical Services, L.L.C. v. Gee, the district court entered a permanent injunction earlier this year barring enforcement of the law,[31] and the case is on appeal for the second time to the Fifth Circuit.[32] Rejecting the foundation of the purported purpose behind these laws–women’s safety–the district court noted in its final order that Duncan “did not introduce any evidence showing that patients have better outcomes when their physicians have admitting privileges,” nor did he “proffer evidence of any instance in which an admitting privileges requirement would have helped even one woman obtain better treatment.”[33] The court continued:

In conclusion, there is no credible evidence in the record that Act 620 would further the State’s interest in women’s health beyond that which is already insured under existing Louisiana law. Indeed, the overwhelming weight of the evidence demonstrates that, in the decades before the Act’s passage, abortion in Louisiana has been extremely safe, with particularly low rates of serious complications, and as compared with childbirth and with medical procedures that are far less regulated than abortion.

Act 620 would do very little, if anything, to advance women’s health and indeed would, by limiting access to legal abortions, substantially increase the risk of harm to women’s health by increasing the risks associated with self-induced or illegal and unlicensed abortions.[34]

This is only a small sample of the major statutory and constitutional disputes in which Duncan has been involved. He represented a muslim inmate in the Supreme Court in a successful religion-based challenge to a state prison system’s beard-length rules (Holt v. Hobbs),[35] represented amici National Sheriffs’ Association and others in challenging President Obama’s DAPA order (Deferred Action for Parents of Americans and Lawful Permanent Residents) (United States v. Texas),[36] represented several state amici in contending that the Sixth Amendment does not require criminal defendants to be apprised of the collateral deportation consequences of a guilty plea (Padilla v. Kentucky),[37] represented several state amici in opposing marriage for same-sex couples (Obergefell v. Hodges),[38] represented the State of North Carolina in filing an unsuccessful cert petition attempting to overturn a Fourth Circuit ruling finding that the state violated the Voting Rights Act in making changes in election laws to target Black voters (North Carolina v. North Carolina State Conf. of the NAACP),[39] represented the State of Louisiana in unsuccessfully contending that Miller v. Alabama (prohibiting mandatory life sentences without parole for juvenile offenders) was not retroactive on state collateral review (Montgomery v. Louisiana),[40] successfully represented Louisiana in overturning a multi-million-dollar jury award against a prosecutor (Connick v. Thompson)[41], and supervised the representation of a Jewish prison inmate seeking a kosher diet (Rich v. Sec’y, Fla. Dep’t of Corrections, in the Eleventh Circuit),[42] among others.

Speeches/Writings

Duncan has been a prolific public commentator, and his views in the public sphere track those made in the courtroom. Indeed, most of Duncan’s writing is directed at litigation. He has written on Hobby Lobby (contraception),[43] Zubik (contraception),[44] Trinity Lutheran (religious funding),[45] Windsor and Obergefell (marriage for same-sex couples),[46] and others.

Duncan has written and spoken most often on the contraception mandate.[47] He predicted that the Affordable Care Act’s contraception mandate “could lead to future mandates that could encompass all manner of controversial practices from surgical abortion to euthanasia to sex-change surgery.”[48] Duncan also complained that the religious-employer exemption does not go far enough:

Who doesn’t get the exemption? Organizations that undertake projects such as educating students, treating the sick or feeding the poor. Because these groups leave the cloister, the government now declares their consciences unworthy of protection.

This kind of religious quarantine is patently unconstitutional.

Animating these measures is a sinister form of “tolerance” that should make religious Americans shudder. It is a cast of mind that relegates the genuinely religious to the margins of polite society. It tolerates countercultural views on sexual morality — provided they are kept safely out of sight.[49]

On marriage, Duncan says that Obergefell “threatens civic peace” because it “marginalize[s] the view of millions of Americans at exactly the wrong time, when standards of civil discourse are rapidly degenerating and when Americans seem increasingly to be forgetting the value of a robust, free, and open exchange of ideas on controversial topics.”[50]

On public displays on religion, he criticizes “militant atheist” groups that insist on “scour[ing] public life of all religious references” or sponsoring deities like the Flying Spaghetti Monster when such “scour[ing]” is not an option.[51] (Disclosure: I am currently co-counseling an unrelated religious-freedom case with the organization Duncan criticizes in the cited piece.) Defending a city’s purported right to sponsor a nativity scene but permit no other religious displays, Duncan explains: “Any government doomed to give ‘equal time’ to objectors whenever it speaks would collapse into incoherence. The postal service couldn’t issue a stamp honoring Martin Luther King, Jr., without also honoring the Ku Klux Klan. The National Holocaust Museum would have to include the Joseph Goebbels Wing. Lincoln’s statue would have to stare at a Jefferson Davis Memorial.”[52]

Duncan has also written a number of law-review articles. For example, one criticizes Flast v. Cohen, which permitted taxpayer standing to challenge Establishment Clause violations.[53] One analyzes and defends Justice Scalia’s dissent in the Ten Commandments case, McCreary County.[54] Another promotes the idea of tying Establishment Clause jurisprudence to the principle of “subsidiarity”–a “theory about the relationship among social structures, the common good and human dignity with a venerable pedigree in European political thought”; the theory, as explained in the article, is highly complex but ultimately leads to the result of a states’-rights approach to establishment questions.[55] And one article criticizes barriers to public religious funding and seemingly laments Supreme Court decisions that have “scoured public schools of all formal religious practice.”[56]

Overall Assessment

Kyle Duncan is an experienced appellate litigator with highly significant successes in the Supreme Court and lower courts. Both through his academic writings on religion-clause jurisprudence and through his litigation, Duncan has established his views on religious freedom, reproductive freedom, and LGBT rights. While some nominees assert that their work in an AG or SG’s office is not relevant because they were merely representing their government client, the assiduousness and consistency of Duncan’s post-government work at Becket and in private practice suggest that his representations track his own views. If confirmed to the Fifth Circuit, he would likely be a strong voice for narrowing statutory and constitutional protections for reproductive freedom and LGBT rights, while expanding the leeway allowed for citizens making religious objections to a wide variety of laws.


[1] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[2] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, 4-5, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[3] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[4] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2-3, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[5] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1-2, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[6] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[7] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[8] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 2, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[9] https://www.becketlaw.org/about-us/mission/.

[10] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 1-2, 32, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[11] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[12] https://fedsoc.org/.

[13] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 5, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[14] http://www.kofc.org/un/en/todays-knights/what-we-do.html.

[15] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 30, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[16] 1:16-cv-236-TDS-JEP (M.D.N.C.).

[17] https://www.aclu.org/legal-document/carcano-et-al-v-mccrory-et-al-complaint.

[18] ECF No. 34 at 2 (PDF p. 8), in 1:16-cv-236-TDS-JEP (M.D.N.C.)..

[19] ECF No. 34 at 2-3 (PDF pp. 8-9), in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[20] ECF No. 127, in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[21] E.g., Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).

[22] E.g., Stone v. Trump, No. CV MJG-17-2459, 2017 WL 5589122 (D. Md. Nov. 21, 2017); Doe 1 v. Trump, No. CV 17-1597 (CKK), 2017 WL 4873042 (D.D.C. Oct. 30, 2017); Adkins v. City of New York, 143 F. Supp. 3d 134 (S.D.N.Y. 2015); see also Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. 2017); Bd. of Educ. of the Highland Local Sch. Dist. v. United States Dep’t of Educ., 208 F. Supp. 3d 850 (S.D. Ohio 2016).

[23] ECF No. 103 at 87-88, in 1:16-cv-236-TDS-JEP (M.D.N.C.).

[24] ECF No. 103 at 89, in 1:16-cv-236-TDS-JEP (M.D.N.C.) (emphasis added).

[25] Resp. to Pet. for Writ of Cert. at 2-3 (PDF. pp. 11-12), http://www.scotusblog.com/wp-content/uploads/2016/01/15-648-Brief-in-Opposition.pdf.

[26] Resp. to Pet. for Writ of Cert. at 9, 12-14 (PDF. pp. 18, 21-23), http://www.scotusblog.com/wp-content/uploads/2016/01/15-648-Brief-in-Opposition.pdf.

[27] 136 S.Ct. 1017 (2016).

[28] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[29] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

[30] http://www.scotusblog.com/wp-content/uploads/2016/02/15-274-bsac-AAPS.pdf.

[31] ECF No. 274, in 3:14-cv-525-JWD-RLB (M.D. La.).

[32] No 17-30397 (5th Cir.).

[33] ECF No. 274 at 67 ¶ 230, in 3:14-cv-525-JWD-RLB (M.D. La.).

[34] ECF No. 274 at 70 ¶¶ 240, 242, in 3:14-cv-525-JWD-RLB (M.D. La.).

[35] Holt v. Hobbs, 135 S. Ct. 853 (2015).

[36] 2016 WL 1377728.

[37] 2009 WL 2564713.

[38] 2015 WL 1608213.

[39] http://www.scotusblog.com/wp-content/uploads/2017/01/16-833-cert-petition.pdf.

[40] 2015 WL 5064004.

[41] 563 U.S. 51 (2011).

[42] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[43] https://www.religiousfreedominstitute.org/cornerstone/2016/6/30/hobby-lobby-spells-doom-for-mandate-20.

[44] https://www.schaerr-duncan.com/supplemental-briefs-in-zubik-v-burwell.

[45] https://www.schaerr-duncan.com/trinity-lutheran-church-v-pauley.

[46] https://www.schaerr-duncan.com/symposium-overruling-windsor; http://www.thepublicdiscourse.com/2015/04/14894/.

[47] Stuart Kyle Duncan, Questionnaire for Judicial Nominees at 6-7, https://www.judiciary.senate.gov/imo/media/doc/Duncan%20SJQ1.pdf.

[48] https://www.firstthings.com/article/2013/10/how-fares-religious-freedom.

[49] http://www.ncregister.com/daily-news/the-other-health-care-mandate-good-samaritan-turned-upside-down.

[50] Kyle Duncan, Obergefell Fallout, in Same-Sex Marriage: A Reference Handbook, 2nd Edition, at 132 (preview available on Google Books).

[51] https://www.schaerr-duncan.com/fighting-the-stupid-public-square.

[52] https://www.schaerr-duncan.com/fighting-the-stupid-public-square.

[53] Kyle Duncan, Misunderstanding Freedom from Religion: Two Cents on Madison’s Three Pence, 9 Nev. L.J. 32 (2008).

[54] Kyle Duncan, Bringing Scalia’s Decalogue Dissent Down from the Mountain, 2007 Utah L. Rev. 287 (2007).

[55] Kyle Duncan, Subsidiarity and Religious Establishments in the United States Constitution, 52 Vill. L. Rev. 67 (2007).

[56] Kyle Duncan, Secularism’s Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493, 497 (2003).

James C. Ho – Nominee to the U.S. Court of Appeals for the Fifth Circuit

As a well-respected appellate attorney, James C. Ho is a safe choice for the federal bench.  Furthermore, Ho, who has both a reputation as a solid conservative and impeccable academic credentials, would give the Trump Administration some badly needed diversity in their judicial ranks, as he would be the first Asian American on the Fifth Circuit, and only the third Taiwanese American federal judge.[1]

Background

Ho was born in Taiwan in 1973, immigrating to the U.S. a year later.  Ho received a B.A. with Honors in Public Policy from Stanford University in 1995, and went onto the University of Chicago Law School, graduating with High Honors in 1999.  After graduating, Ho clerked for Fifth Circuit Judge Jerry Edwin Smith, a noted conservative.

In 2001, Ho moved to Washington D.C. to work for the Civil Rights Division in the Department of Justice.  Ho later moved to the Office of Legal Counsel (OLC), working under Assistant Attorney General (and now federal judge) Jay Bybee.  In 2003, Ho was hired by newly elected Texas Senator John Cornyn to serve as his Chief Counsel.

In 2005, Ho was hired out of the Senate by Justice Clarence Thomas and served a one-year clerkship with the Justice.  After the clerkship concluded, Ho joined the law firm Gibson Dunn as an Associate.  Just two years later, Texas Attorney General Greg Abbott chose Ho to replace the departing Texas Solicitor General (and current U.S. Senator) Ted Cruz.

In 2010, Ho left the Texas Solicitor General’s Office to rejoin Gibson Dunn as a partner in their Dallas office.  Ho currently serves as the co-chair of the firm’s Appellate and Constitutional Law Practice Group.

History of the Seat

Ho has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on December 31, 2013 with Judge Carolyn Dineen King’s move to senior status.  King, an appointee of President Jimmy Carter, moved to senior status with three years left in the Obama Administration.  The Administration vetted Judge Marina Garcia Marmolejo, who Obama has previously tapped for the U.S. District Court for the Southern District of Texas, for the vacancy, but ultimately chose not to move forward with the nomination.[2]  Ultimately, no nomination was put forward by the Obama Administration for the vacancy and the seat was left vacant.

The King vacancy, along with a second Texas vacancy opened by the retirement of Judge Emilio Garza, 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: Ho; Texas Supreme Court Justice Don Willett; U.S. District Judge Reed O’Connor; and appellate attorney Andy Oldham.[3]  Ho and Willett were ultimately nominated on September 28, 2017.[4]

Political Activity

Ho has been a generous donor to Republican candidates.  Cruz and Cornyn have been particular beneficiaries of his largesse, receiving $21806 and $7300 respectively.[5]  Additionally, Ho has contributed to $7600 to Cruz’s PAC, the Jobs, Growth, & Freedom Fund, and smaller contributions to Senators Chuck Grassley, Mike Lee, and Tom Cotton.

Legal Experience

While Ho is most celebrated as an appellate litigator, he spent the first five years of his legal career in government, working first for the Department of Justice, and then for Cornyn’s staff.  Notably, in February 2002, Ho drafted a memo to John Yoo, the Deputy Assistant Attorney General at OLC regarding the Interpretations of Article 3 of the Geneva Conventions.[6]  While the memo has not been made public, a section of it was cited by Yoo in his own memorandum claiming the legality of waterboarding and other interrogation tactics.[7]

During his initial stint as an associate at Gibson Dunn, Ho represented the American Civil Liberties Union (ACLU) , the Free Market Foundation, and the Texas Eagle Forum in successfully overturning restrictions on campaign money intended to influence the Texas House Speaker’s race.[8]

As Texas Solicitor General, Ho was tasked with representing the State of Texas in proceedings in state and federal court.  During his tenure, Ho argued one case at the U.S. Supreme Court, successfully arguing that the Religious Land Use and Institutionalized Persons Act (RLUIPA) does not allow for suit against state officials in their private capacity.[9]  Ho also filed amicus briefs supporting the enforcement of the Second Amendment against municipalities in McDonald v. City of Chicago.[10]

Notably, as Solicitor General, Ho was also involved in the defense of the University of Texas’ affirmative action policies, challenged by conservatives who viewed them as discriminating against white applicants.[11]  Ho defended the affirmative action policies as “nuanced, student-by-student analysis.”[12]

After leaving the Texas Solicitor General’s office for Gibson Dunn, Ho took charge of their Appellate and Constitutional Law practice group.  In that capacity, Ho notably was part of the legal team defending the University of Texas’ admission policy at the U.S. Supreme Court.  The Supreme Court ultimately upheld the admission policy over charges that it constituted race-based discrimination, accepting Ho’s arguments.[13]

Speeches and Writings

Over the course of his legal career, Ho has both spoken and written on the law and the Constitution. Below are some of the key topics he has addressed.

Birthright Citizenship

Ho is a strong proponent of “birthright citizenship”: the guarantee in the Fourteenth Amendment that all individuals born in the United States gain citizenship, regardless of the legal status of their parents.  In 2007, Ho testified before the Texas Legislature against HB 28, a bill that would strip state services from the children of illegal immigrants, arguing that the bill violates the Fourteenth Amendment.[14]  Furthermore, in a 2006 article, Ho sharply criticized proposals to change birthright citizenship for children of illegal immigrants, noting that “birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”[15]

International Law, War, and Terrorism

In 2003, Ho authored an article responding to critics of the U.S. War in Iraq.[16]  Specifically, Ho argued that critics were mistaken in focusing the legitimacy of the coalition efforts on the presence or absence of Weapons of Mass Destruction (WMDs).[17]  Rather, Ho argued:

“…self-defense justification does not turn on evidence of WMD, but rather on the reasonable expectations and fears of the United States and Coalition partners…”[18]

Additionally, Ho co-authored an article with his old boss John Yoo on international law and terrorism.  In the article, Ho and Yoo argued that the September 11th terrorist attacks and subsequent conflict with Al Qaeda qualifies as a “war” under international law.[19]  They went to argue that, despite this fact, Al Qaeda members are not entitled to “prisoner of war” status or the protections that come with it.[20]

Overall Assessment

Ho would bring a truly unusual background to the federal bench.  He would be one of a handful of naturalized citizens serving on the federal judiciary, as well as one of the few with legislative and executive experience.

However, for all the unique qualities Ho would bring to the bench, he is nonetheless a fairly traditional nomination.  As a former Supreme Court clerk with a long history of appellate advocacy, Ho’s qualifications for the bench are unquestionable.  Further, while Ho is a strong conservative, his willingness to defend affirmative action and birthright citizenship for all shows the ability to reject conservative orthodoxy when it conflicts with the law.

Ultimately, many Democrats may decide that a principled conservative like Ho is the best they can hope for from the Trump Administration.  As such, Ho shouldn’t face the level of confirmation opposition as his co-nominee Willett, and will likely be confirmed swiftly.


[1] Judges Raymond Chen and Theodore Chuang are both Taiwanese American.

[2] 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.  

[3] 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.  

[4] 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] Al Kamen, Gonzales Witness Under Their Noses, Wash. Post, Jan. 10, 2005.

[7] Alliance for Justice, AJC Nominee Snapshot: James Ho, https://www.afj.org/wp-content/uploads/2017/11/AFJ-Snapshot-Ho.pdf.  

[8] Laylan Copelin, Outside Cash Allowed in Speaker’s Race, Austin American Statesman, Feb. 27, 2008.

[9] Sossamon v. Texas, 563 U.S. 277 (2011).

[10] 561 U.S. 742 (2010).

[11] Ralph K.M. Haurwitz, Judge Struggles with UT Race Bias Lawsuit, Austin American Statesman, May 20, 2008.

[12] See id.

[13] See Fisher v. University of Texas, 579 U.S. __ (2016).

[14] Juan Castillo, Panels Ask: Can State Fix Border Problems, Austin American Statesman, Mar. 29, 2007.

[15] James C. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 2d 367 (Summer 2006).

[16] James C. Ho, International Law and the Liberation of Iraq, 8 Tex. Rev. Law & Pol. 79 (Fall 2003).

[17] Id. at 79-80.

[18] Id. at 83.

[19] James C. Ho, John Yoo, The New York University – University of Virginia Conference on Exploring the Limits of International Law: The Status of Terrorists, 44 Va. J. Int’l L. 207, 209 (Fall 2003).

[20] Id. at 217-18.

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.