LIT COMMENTARY
Judge Don Willett was slated for his Bacon Tweets before, during and after his 2017 nomination and subsquent confirmation as a Federal Judge on the Court of Appeals for the Fifth Circuit. The question is how has his ‘heart’ been since that time. In the articles that follow, you’ll see a commentary from Elie Mystal / The Nation as well as a randomly picked article from Mashable which wasn’t very impressed with the controversial sizzlin’ bacon tweets.
LIT hasn’t performed a detailed review of Judge Don Willett’s many 3-panel and authored opinions but we’ll list a few that have previously caught our attention and which we believe are not in the interest of Texas citizens but are more focused to (i) benefit rogue lawyers and law firms, corporations, Wall St and their banking and real estate investment buddies and; (ii) we also highlight the civil rights concerns (echoed by many when perusing the internet for public opinion), in a very questionable qualified immunity opinion and (iii) Intimidation of court staff or employees to prevent them from reporting judicial misconduct and/or fraudulent/criminal acts:-
(i) The appalling “Snap Removal” decision – benefiting rogue lawyers, firms and their [corporate/banking] clients;
(ii) The Shameful Fifth Circuit Opinion. Qualified Immunity for a Nurse who Ignored Signs of Medical Distress and Let a Senior Citizen Die without any Respect, Humanity or Care. See Cleveland v. Bell, 938 F.3d 672 (5th Cir. 2019).
(iii) Intimidation of Court Employees who are deemed Whistleblowers against corrupt and dishonest Judges. (see Anderson v Valdez, 2019). This opinion goes against every federal and ethics rule. Willett’s inclusion and reversal in this 3-panel decision is more than alarming.
That stated, it would be most unfair to Judge Don Willett not to recognize his apparent change of heart since his confirmation. In particular, two cases spring to mind;
(i) In Doe v. McKesson, 935 F.3d 253 (5th Cir. 2019) where Judge Willett expressed a change of heart. This however, was not enough for his colleagues, who would subsequently deny an ‘en banc’ review.
(ii) Zadeh v. Robinson, 902 F.3d 483 (5th Cir. 2018). Here, Willett issued a concurring dubitante;
“But owing to a legal deus ex machina —the “clearly established law” prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.”
Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.
Count me with Chief Justice Marshall: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” The current “yes harm, no foul” imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.
In summary
The change of heart by Willett in re McKesson and the [kinda dissent] in the Zahed case indicate to LIT that he was somewhat torn.
Zahed was early on, in 2018.
The Qualified Immunity (Cleveland) case in (ii) above, authored by Judge Oldham was in Sept. 2019 but Willett sat silent in that horrible immunity decision.
However, in McKesson, a more visible and politically charged case (Black Lives Matter) where the opinion was released a month before the Cleveland case, he elected to have a major change of heart, reversing himself.
“I have had a judicial change of heart,” Willett wrote in his new opinion. “Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’”
So can Judge Willett’s change of heart be viewed as authentic? We don’t believe so.
Note; This is based on the limited opinions which we have reviewed and which can only be described as anti-consumer and in violation of the constitution and citizens civil rights – since his appointment at the 5th Circuit.
Willett’s questionable opinions and dissents during his lengthy tenure at the Texas Supreme Court has followed him to the Fifth Circuit. At LIT, we believe that human nature, combined with one’s own persona – is difficult to change – especially when you’re now in your 50’s.
It’s been nearly 3 years since Willett’s appointment and we do not see any indication that Judge Don R. Willett has or will change his bull-riding style or his judicial opinions, except where it may benefit his own public relations campaign.
Don R. Willett
The First Injustice
Position: Fifth Circuit Court of Appeals
Age: 53
Hostile to: Civil rights, federal laws, gun regulations
Originally Published; July 15, 2019 | Republished; Aug 8, 2020
It makes sense that our Twitter president would nominate a Twitter judge. Nearly every story about Texas Judge Don Willett mentions his Twitter feed, mainly because he has one and it’s exceedingly rare for a judge to have any kind of presence on social media. Unlike Trump, Willett has tended to cop an “aww, shucks” Twitter persona, praising his mother and presenting himself as an affable, God-loving family man.
Hidden among the dad jokes and puppy pictures, however, you’ll find a meaner streak that exemplifies his judicial opinions.
In one tweet, Willett, a fierce opponent of marriage equality, joked that he could “support recognizing a constitutional right to marry bacon.” In another, he called a transgender woman allowed to play on a girls’ softball team “A-Rod.” Apparently, he’s another cis-dude bro who thinks the transgender-equality movement is just another ruse for people who want to cheat at high school sports.
Since Willett was confirmed to the Fifth Circuit in 2017, his Twitter feed has fallen silent, and we have only his record and his decisions to go on.
That record is anything but kind.
Willett previously served on the Texas Supreme Court, and none other than religious-right leader James Dobson of Focus on the Family called Willett the “most conservative” judge on the court—a claim he proudly repeated in a campaign ad.
Touting yourself as the most conservative judge on a court in Texas is like boasting about being the most violent member of your street gang. It’s a terrifying thing to be proud of, even to other members of the gang. But Willett wasn’t fronting; in decision after decision, he backed up his boast.
Prior to the Supreme Court’s decision protecting same-sex marriage in Obergefell v. Hodges, Willett refused to extend full faith and credit to same-sex marriages performed in other states. He dissented from an opinion that allowed a same-sex couple to be divorced in Texas.
After Obergefell, he did everything he could to delay the implementation of same-sex marriage in Texas by lodging purely procedural objections.
He ruled, again post-Obergefell, that the spouses of public workers in same-sex marriages can’t receive employment benefits through their partner.
Even before Willett became a Texas judge, his personal agenda was well documented.
He worked for George W. Bush when Bush was governor of Texas. As director of research and special projects, Willett wrote a memo about a proclamation that Bush was set to issue honoring the Texas Federation of Business and Professional Women. That memo leaked. In it, Willett wrote in part:
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).
Yes, the man who puts the mention of glass ceilings and better working conditions for women in scare quotes is now a federal judge who may strike down federal laws that seek to ameliorate inequities he thinks have been debunked.
And he might someday be a Supreme Court justice. Willett’s name was floated by some hard-core conservatives as a possible nominee when Justice Anthony Kennedy retired.
Willett never made the short list for the spot, which eventually went to Brett Kavanaugh, possibly because that old Twitter feed of his included a few disparaging remarks about Trump. (Willett, like many of the GOP faithful, was against Trump before he was for him.)
But on the Fifth Circuit, Willett has done what he could to stay in Trump’s good graces. He wrote a blistering dissent in a Second Amendment case, lamenting that the amendment was “scorned as fringe.” If Willett considered the number of bodies annually sacrificed to the Moloch that is the Second Amendment, he might see why others hold his position in such scorn. But gunmongering is a position that gets the Trump people riled up.
Most important for Trump, Willett was one of two judges behind a controversial ruling in Collins v. Mnuchin for the Fifth Circuit holding that the president could fire the head of the Federal Housing Finance Agency. [A petition to the US Supreme Court has been granted and the highest court will consider Willett’s authored opinion in the next term].
The FHFA is a minor agency, but the way Willett and his fellow judge described the agency made it sound as if the FHFA were similar in structure to the Federal Reserve. By creating this connection, the decision could someday provide a useful precedent for Trump to dismiss the head of the Federal Reserve if the country’s central bank doesn’t do what Trump wants on interest rates.
Explaining the ruling, ThinkProgress justice editor Ian Millhiser wrote that the Collins decision “is a potential recipe for economic and political disaster—a central banking system subject to the whims of Trump’s reelection campaign.”
That’s the kind of decision the people who read Trump his bedtime stories will notice.
Most people are better humans in real life than they appear to be on Twitter. Willett is the opposite. Twitter is where he went to appear friendly and reasonable. His judicial opinions are where he trolls to own the libs.
Gross bacon tweet comes back to haunt this Trump nominee
Originally Published; Nov 15, 2017 | Republished; Aug 8, 2020
A reminder for all of the homophobes, racists, and other deplorables on Twitter: Your dumb tweets can come back to haunt you.
Exhibit A: Texas Supreme Court Judge Don Willett.
Willett, who President Donald Trump has nominated for a federal judgeship in the U.S. Court of Appeals, was grilled over a tweet regarding same-sex marriage and bacon during a congressional hearing Wednesday.
The day after Supreme Court arguments began in Obergefell v. Hodges, the case that would eventually result in the legalization of same-sex marriage in 2015, Willett posted an eyebrow-raising tweet about the cured meat.
“I could support a constitutional right to marry bacon,” he tweeted, along with a pic of some sizzlin’ meats.
I could support recognizing a constitutional right to marry bacon. pic.twitter.com/HKPW6tE4H6
— Judge Don Willett (@JusticeWillett) April 30, 2015
As The Hill notes, Sen. Patrick Leahy criticized Willett’s bacon tweet, as well as another about a transgender student, as potentially prejudicial.
“If you’re confirmed to the Fifth Circuit you’re going to hear constitutional and civil rights cases involving LGBTQ individuals,” the Vermont Democrat said. “Why would a transgender person with a case before you ever think they’d have a fair and impartial hearing?”
Willett defended both tweets as jokes. In particular, he characterized the bacon comment as his attempt to lighten the mood and diffuse divisiveness around same-sex marriage.
Leahy didn’t buy it, questioning Willett’s judgement as he asked “and you think that cut back the divisiveness with a comment like that?”
“Senator, I believe every American is entitled to equal worth and dignity,” Willett responded. “I’ve never intended to disparage anyone and would never do so. That’s not where my heart is.”
The bacon tweet weirdly echoes (bogus) “slippery slope” arguments against marriage equality: that same-sex marriage leads to the legalization of beastiality or pedophilia. In addition, his quip reduced a momentous judicious proceeding to a very bad punchline.
Willett has been called out by LGBTQ news outlet The Advocate’s roundup for both his tweets and his record. He’s on their list called “Trump’s LGBT-Unfriendly Supreme Court Picks.”
Go away, A-Rod. “@FoxNews: California’s transgender law allows male high schooler to make girls’ softball team http://t.co/hnTrWAaV8g“
— Judge Don Willett (@JusticeWillett) February 14, 2014
pt>
Conservative media is painting the exchange as proof that democrats can’t take a joke. But hey, just a thought: maybe civil liberties are not actually a laughing matter.
Did Judge Don Willett Replace Judge Edith Clement Due to a Judicial Complaint in this High Profile Redistricting Case? – Her dissent included inappropriately partisan and disrespectful attacks on other judges in a dissenting opinion, said complainant. https://t.co/ysyvnNOylo
— LawsInTexas (@lawsintexasusa) August 3, 2020
![DONATE TO THE LAST STAND](https://cdn.lawsintexas.com/cb:Eo5i~20d8c/w:350/h:350/q:eco/f:best/ig:avif/https://lawsintexas.com/wp-content/uploads/2024/06/LITAMOLASTSTAND-1.png")
