Nomination of Don Willett to the U.S. Court of Appeals for the Fifth Circuit Questions for the Record
Submitted November 22, 2017 QUESTIONS FROM SENATOR FEINSTEIN
Please respond with your views on the proper role of precedent.
When, if ever, is it appropriate for lower courts to depart from Supreme Court precedent?
It is never appropriate for lower courts to depart from Supreme Court precedent. As my Court recently – and unanimously – noted, “[o]nly the Supreme Court has the ‘prerogative . . . to overrule one of its precedents.” See King Street Patriots v. Texas Democratic Party, No. 15-0320 (Tex. 2017) (quoting Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016)).
When, in your view, is it appropriate for a circuit court to overturn its own precedent?
Fifth Circuit precedent forbids a circuit panel from overruling prior circuit precedent. “It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
When, in your view, is it appropriate for the Supreme Court to overturn its own precedent?
As a lower-court nominee, it would be unfitting to advise when it is appropriate for the Supreme Court to overturn its own precedent. The Court itself determines when that is appropriate. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (only the Supreme Court has “the prerogative of overruling its own decisions”).
Many conservative judges and legal scholars believe that the Constitution should be interpreted consistent with its “original meaning”—in other words, the meaning it had at the time it was enacted.
With respect to constitutional interpretation, do you believe judges should rely on the “original meaning” of the constitution?
As Justice Kagan testified at her confirmation hearing, “[s]ometimes [the Framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists.” The law begins with language, and all judges should care about the original meaning of language, both constitutional and statutory. The Supreme Court has repeatedly made clear that text and history play an important role in constitutional interpretation. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318 (2001). If confirmed, my approach to constitutional interpretation will be the same as my approach to judicial review generally – carefully exhaust the entire judicial process and faithfully apply all controlling precedent of the Supreme Court and the Fifth Circuit.
How do you decide when the Constitution’s “original meaning” should be controlling?
Lower courts must faithfully follow binding Supreme Court and circuit precedent, no matter the interpretive methodology used in those cases. If precedent applies, precedent controls.
Does the “original meaning” of the Constitution justify a constitutional right to same-sex marriage?
Obergefell v. Hodges, which recognized a constitutional right to same-sex marriage, is controlling Supreme Court precedent. It binds me as a Justice on the Supreme Court of Texas, and it will bind me if I am confirmed to the Fifth Circuit. For a lower-court judge, the holding is what matters, not the theory of constitutional interpretation that produced it.
Does the “original meaning” of the Constitution explain the right to marry persons of a different race recognized by the Court in Loving v. Virginia?
Loving v. Virginia is controlling Supreme Court precedent. It binds me as a Justice on the Supreme Court of Texas, and it will bind me if I am confirmed to the Fifth Circuit. Again, for a lower-court judge, the holding is what matters, not the theory of constitutional interpretation that produced it.
When Chief Justice Roberts was before the Committee for his nomination, Senator Specter referred to the history and precedent of Roe v. Wade as “super-stare decisis.” A textbook on the law of judicial precedent, co-authored by Justice Neil Gorsuch, refers to Roe v. Wade as a “super-precedent” because it has survived more than three dozen attempts to overturn it. The book explains that “superprecedent” is “precedent that defines the law and its requirements so effectively that it prevents divergent holdings in later legal decisions on similar facts or induces disputants to settle their claims without litigation.” (The Law of Judicial Precedent, Thomas West, p. 802 (2016))
Do you agree that Roe v. Wade is “super-stare decisis”? “superprecedent”?
For a lower-court judge, every Supreme Court precedent is super-precedent. The prefix or label matters not. All Supreme Court precedent is equally binding on lower courts. Lower-court judges are duty-bound to follow all controlling precedent, including Roe. If confirmed, I will do so fully, fairly, and faithfully with zero hesitation.
Is it settled law?
Roe v. Wade is controlling Supreme Court precedent. It binds me as a Justice on the Supreme Court of Texas, and it will bind me if I am confirmed to the Fifth Circuit. I will follow it fully, fairly, and faithfully with zero hesitation.
In Obergefell v. Hodges, the Supreme Court held that the Constitution guarantees same- sex couples the right to marry. Is the holding in Obergefell settled law?
Obergefell v. Hodges is controlling Supreme Court precedent. It binds me as a Justice on the Supreme Court of Texas, and it will bind me if I am confirmed to the Fifth Circuit. I will follow it fully, fairly, and faithfully with zero hesitation.
In Justice Stevens’s dissent in District of Columbia v. Heller he wrote: “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”
Do you agree with Justice Stevens? Why or why not?
As a federal judicial nominee, it would be unfitting to comment on Justice Stevens’ dissent (or any other Supreme Court opinion). Heller is controlling Supreme Court precedent. It binds me as a Justice on the Supreme Court of Texas, and it will bind me if I am confirmed to the Fifth Circuit.
Did Heller leave room for common-sense gun regulation?
The Supreme Court in Heller expressly stated, “the right secured by the Second Amendment is not unlimited,” adding, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” 554 U.S. 570, 626-27 (2008).
Did Heller, in finding an individual right to bear arms, depart from decades of Supreme Court precedent?
Please see my response to Question 5a above.
In campaign ads seeking reelection to the Texas Supreme Court, you have repeatedly described yourself as “the most conservative” Justice on that Court. (Ad Provides Opportunity to Reflect on Meaning of “Conservative,” Texas Lawyer (June 4, 2012))
What did you mean when you said you were the “most conservative” Justice on the Texas Supreme Court?
Texas has partisan judicial elections (something I have vehemently opposed since becoming a lawyer 25 years ago), and I was running in a contested Republican primary. My campaign quoted state and national conservative leaders who described me that way. My twelve-year record on the Supreme Court of Texas is one of unflinching devotion to the Rule of Law, and I have never hesitated to rule against my staunchest supporters when the law was not on their side. My vote follows the law – every time – regardless of a litigant’s wealth, status, or power.
Do you believe you would be the “most conservative” judge on the Fifth Circuit, if confirmed?
If confirmed, I will have a surpassing fidelity to the Rule of Law, including fully, fairly, and faithfully following all controlling Supreme Court and Fifth Circuit precedent.
In one ad during your last campaign, you said, “I am the consensus, conservative choice from every corner of the conservative movement: pro-life, pro-faith, pro-family, pro- liberty, pro-Second Amendment, pro-private property rights and pro-limited government.” (Court Has Bias for Business, Some Say, Austin American-Statesman (May 14, 2012))
Is this still how you would describe yourself today?
Please see my response to Question 6a above.
The Supreme Court has repeatedly held that the Constitution protects a woman’s right to choose, including in Roe v. Wade and Planned Parenthood v. Casey. How should I understand your 2012 campaign promise to be a “pro-life” justice?
As explained in my response to Question 6a, I was describing the state and national conservative leaders and grassroots activists who supported my campaign, not myself. Roe and Casey are controlling Supreme Court precedent. They bind me as a Justice on the Supreme Court of Texas, and they will bind me if I am confirmed to the Fifth Circuit. I will follow them fully, fairly, and faithfully with zero hesitation.
It seems like your comments were intended to send a message to voters about how you would rule on cases that might come before you. Is that what those comments were intended to do?
Please see my responses to Questions 6a and 7b above.
Given these comments, how can you assure us—and litigants that might have cases before you—that you will be able to rule impartially on these and other politically charged issues?
Please see my responses to Questions 6a and 7a –7c above.
Your name appeared on President Trump’s original list of eleven possible nominees to fill Justice Scalia’s seat on the Supreme Court. During the campaign and even after he was elected, President Trump repeatedly stated that he had a litmus test for Supreme Court nominees – that he would only select nominees who would oppose a woman’s right to choose and overturn Roe v. Wade. The people who put together President Trump’s Supreme Court shortlist believed that you would be a reliable vote to overturn Roe. Is that true?
I don’t know what those who assembled the shortlist believed.
If your answer to the prior question is “no,” then why do you think your name appeared on the shortlist, given what President Trump told us about his litmus test?
Please see my response to Question 8a above.
President Trump specifically thanked the Federalist Society and the Heritage Foundation for putting together his Supreme Court shortlist. Were you ever contacted by anyone from the Federalist Society or the Heritage Foundation about a potential Supreme Court nomination or about your nomination to the Fifth Circuit? If so, when and by whom?
Why do you think the Federalist Society and Heritage Foundation selected your name to appear on President Trump’s list?
I do not know.
In 2016, the U.S. Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges. In 2017, you joined a Texas Supreme Court decision called Pidgeon v. Turner. In that case, your Court refused to hold that Obergefell required the City of Houston to extend benefits to same-sex spouses of city employees on the same terms that the City granted benefits to heterosexual spouses. Just to clarify, do you believe that despite the U.S. Supreme Court’s decision, a state or city could legally treat LGBT married couples worse than heterosexual married couples?
As this case remains in active litigation and could reappear before me (either on remand from the U.S. Supreme Court or on appeal from the Texas trial court to which we remanded the case), I must be especially circumspect. I am doubly constrained – first, as a sitting Texas Supreme Court Justice subject to the Texas Code of Judicial Conduct, and second, as a federal judicial nominee guided by the Code of Conduct for United State Judges. Under both state and federal canons, I am ethically prohibited from commenting on the merits of a pending case, but I can note that the characterization of what my Court addressed in Pidgeon seems to have been grossly inflated.
My Court in Pidgeon did not decide the merits, which had never been fully briefed or litigated. We did not rule for or against anyone on the benefits issue. We had no record on which to do so. We did not enjoin the City’s benefits policy. We left it in effect and remanded, as both parties requested, so they could litigate their constitutional arguments in light of Obergefell, which was issued while the case was on appeal.
While we decided an important question of Texas procedural law, we did not decide any questions of federal law including whether the U.S. Constitution required Houston to issue benefits to same-sex couples. We did as both parties requested and remanded to the trial court so the parties could – for the first time – fully brief and present their arguments on the merits in light of Obergefell, which was issued after the trial court had issued its preliminary injunction. We stated unequivocally that Obergefell was the law of the land and must be applied by the lower courts on remand. And we expressly rejected the taxpayers’ request to instruct the lower courts to read Obergefell “narrowly.” We also rejected the taxpayers’ request that we affirm the preliminary injunction, holding instead that “the court of appeals did not err by reversing this temporary injunction in its entirety.” Not one word of Pidgeon casts into doubt, challenges, or criticizes Obergefell. Indeed, we “agree[d] with the Mayor that any effort to resolve whether and the extent to which the Constitution requires states or cities to provide tax-funded benefits to same-sex couples without considering Obergefell would simply be erroneous.”
Finally, I am deeply grateful that my nomination is strongly supported by the City’s counsel of record before the U.S. Supreme Court. As former Chief Justice Wallace Jefferson’s letter to the Committee graciously notes, I understand “the judiciary’s role in adjudicating disputes without imposing a judge’s or court’s personal preferences.”
In Obergefell, the Supreme Court explained that the same-sex couples seeking for the right to marry “ask for equal dignity in the eyes of the law. The Constitution grants them that right.” How does the Texas Supreme Court’s holding in Pidgeon give full effect to the Supreme Court’s holding that same-sex couples deserve “equal dignity in the eyes of the law”?
Please see my response to Question 10a above.
In Loving v. Virginia, the U.S. Supreme Court held that state laws banning interracial marriage were unconstitutional. In your view, would it be constitutional for the City of Houston to grant more spousal benefits to city employees who were married to people of the same race than to city employees who were married to people of different races?
Loving v. Virginia is controlling Supreme Court precedent, and if confirmed I will follow it fully, fairly, and faithfully with zero hesitation. Please also see my response to Question 10a above.
In 2015, you authored a concurrence in Patel v. Texas Department of Licensing and Regulation (No. 12-0657), regarding Texas’ licensing statutes and regulations.
a. Your concurrence began by quoting Frederick Douglass after he finally won his freedom from slavery—in your words, “Frederick Douglass’s irrepressible joy at exercising his hard-won freedom captures just how fundamental—and transformative—economic liberty is.” Please discuss how state licensing schemes, and health and safety regulations, are similar to the practice of human chattel enslavement that existed in the United States, to which Frederick Douglass was subjected.
I was not equating state licensing schemes or health and safety regulations with “human chattel enslavement.” I was noting that the constitutionally protected right to pursue a lawful calling is indispensable to dignity and prosperity. I readily accept the State’s sweeping police power to regulate in the public interest. I said so unequivocally in my concurrence: “[n]obody seriously disputes a state’s omnibus power to safeguard its citizens’ health and safety via economic regulation.”
b. You wrote in your Patel concurrence that Texans were “doubly blessed, living under two constitutions sharing a single purpose: to secure individual freedom, the essential condition of human flourishing.” Later, you also stated that “even if the Texas Due Course of Law Clause mirrored perfectly the federal Due Process Clause, that in no way binds Texas courts to cut-and- paste federal rational-basis jurisprudence that long post-dates enactment of our own constitutional provision, one more inclined to freedom.” But in 1996, you were deeply critical of the Texas Court of Criminal Appeals, stating that the TCCA had “boldly declared itself free to interpret the Texas Constitution in pro-defendant ways that the U.S. Supreme Court has flatly rejected when construing parallel provisions of the U.S. Constitution.” According to you, the result was that “the Texas Constitution—via judges eager to swell (abandon?) their judicial role and foist their policy views upon the unwashed masses—may now afford criminal defendants greater protection than its federal counterpart.” Why is the fact that state constitutions may afford different protections to individuals a positive development when it relates to economic liberty, but a negative development in the context of criminal justice?
Twenty-plus years ago, when I wrote a policy piece discussing the Texas Court of Criminal Appeals, I stood outside the judicial system as a private lawyer and think- tank commentator. Today, I stand squarely within the judicial system and am duty-bound to faithfully and impartially apply the law as it is. My 1996 article acknowledged that Texas, like every other state, has its own constitution, and is free to recognize rights that are greater or more fulsome than those recognized under the U.S. Constitution, including those implicated in a criminal justice setting. A judge must never disregard a criminal defendant’s procedural protections required by law. My 1996 paper was lamenting judges’ seeming aversion to harmless-error analysis, thus elevating personal policy preferences over adherence to the Rule of Law.
c. Your Patel concurrence stated “I oppose judicial activism, inventing rights not rooted in the law. But the opposite extreme, judicial passivism, is corrosive, too—judges who, while not activist, are not active in preserving the liberties, and the limits, our Framers actually enshrined.” Please explain what you meant by this statement.
The North Star for every judge must always be legal principles, not personal preferences. A black robe should never cloak the imposition of will over judgment. The Texas Constitution confers power, but it also constrains power. It is inclined to limited government, which explains why Texas legislators proposed 156 constitutional amendments in 2017. The Texas Constitution is irrefutably framed in proscription, sharply limiting government power, and Texas judges interpreting it must faithfully enforce its constitutional constraints.
d. Why is it appropriate for judges to be “active in preserving liberties, and the limits, our Framers actually enshrined” in the economic context, but not in the criminal justice context?
Texas judges must “preserve, protect, and defend” the Texas Constitution’s provisions in every context, including the criminal justice context. Nothing in Patel or in any other writing, judicial or nonjudicial, suggests otherwise.
e. In your Patel concurrence, you stated “Legal fictions abound in the law, but the federal ‘rational basis test’ is something special; it is a misnomer, wrapped in an anomaly, inside a contradiction. Its measure often seems less objective reason than subjective rationalization.” What standard of review will you apply under federal law to economic regulations?
In Patel, I was interpreting the Texas Constitution on a court of last resort. If confirmed as a federal circuit judge, I will be interpreting the Fourteenth Amendment on an intermediate court and will be 100 percent bound by controlling Supreme Court and Fifth Circuit precedent, which I will follow fully, fairly, and faithfully.
f. Your Patel concurrence also included a quote which you attributed to Benjamin Franklin: “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.” Please describe why you included this quote.
Patel concerned the constitutionally protected right to earn a living and whether the Texas Constitution places an outer-boundary limit on government’s ability to restrict that right. It examined whether the Texas Legislature has carte blanche to restrict occupational freedom, or whether the Texas Constitution imposes judicially enforceable limits, no matter the legislative vote-count.
g. Under what modern circumstances do you believe “well-armed lambs” should “contest the vote”?
Please see my response to Question 11f above.
In 2010, you joined a dissent in In the matter of B.W., a tragic case where a 13-year-old girl with a history of being sexually and physically abused, solicited an undercover police officer and was arrested and charged with prostitution. The majority held that the 13- year-old girl could not be charged with prostitution under the Texas code, stating “Our Legislature has passed laws recognizing the vulnerability of children to sexual exploitation, including an absolute prohibition on legal consent for children under fourteen. In the absence of a clear indication that the Legislature intended to subject children under fourteen to prosecution for prostitution when they lack the capacity to consent to sex as a matter of law, we hold that a child under the age of fourteen may not be charged with that offense.”
a. Why did you agree that a child who could not legally consent to sex under Texas’s statutory rape law could nevertheless be charged with prostitution?
All nine justices saw the underlying facts as heart-rending. The disagreement was simply over how best to read the various statutes to protect children caught up in such horrors. There is zero doubt that prostituted minors are victims in the most tragic sense. Notably, however, anti-trafficking advocates are somewhat divided on whether prostituted children should be adjudicated delinquent. Those who oppose immunity for exploited children worry that if the judicial system is unable to advocate for treatment and rehabilitation, prostituted children are left at the mercy of pimps and johns, thus inviting even more prostitution of children. Some states have enacted victim-centered protective response laws that offer prostituted children a protective response, rather than a juvenile justice or criminal response. I thought Justice Wainwright’s dissent was the better reading of the law – and also more protective of victimized children, who would receive counseling, rehabilitation, and treatment, rather than be released back into a toxic street environment. In this case, B.W., a violent and chronic runaway (her caseworker’s description) had fled her third placement in a group home facility and had been missing for more than a year when she was picked up.
What separated the majority and the dissent, at bottom, were three things. First, the view of the role of the juvenile-delinquency system. The majority treated it as a “prosecution” or “quasi-criminal” proceeding from which children should be shielded. In fact, it is a civil proceeding designed to identify and correct behavior that, if left unchecked, could provide far worse legal consequences – it is there, ideally, to serve children before it is too late. It merits mention: Upon discovering that B.W. was 13, the State dismissed the adult criminal charge and refiled in the civil juvenile system – a system that focuses on rehabilitation of delinquency rather than prosecution of crimes. Second, the specific role that the “age of consent” played. By having an age of consent, we essentially impose “strict liability” on adults who have sex with children, denying them a defense. But that irrebutable legal presumption doesn’t mean that behavior is not evidence of delinquency for some children 14 and under. It just means that the law harshly (and wisely) punishes adults who take advantage of them. Third, the interaction of the Penal Code and the Family Code. The Family Code imports the Penal Code for children ages 10 and over. The majority decided to carve out an exception, based on what the dissent thought was a mistaken premise (the two points above). Under the statute as written, the dissent believed that the courts had the obligation to protect children by adjudicating them delinquent for behavior that would have been criminal by an adult.
Describing the process as a “prosecution” or finding children “guilty” of a crime is a misunderstanding of the statutory regime. It was a civil regime designed to protect children and put them on a path so they would never need to enter the criminal system when they became adults. The statute safeguards children by intervening when they are on a dangerous course – a course that will lead to certain ruin if not halted. The majority put it this way: “the law recognizes that minors of a certain age have a reduced or nonexistent capacity to consent, no matter their actual agreement or capacity.” But the fact that some actual minors (not the theoretical ones envisioned in the statute) do have “actual agreement or capacity” is the thing that should worry us. They are real human beings, not just constructs. Simply pretending they are totally unaware of their circumstances (even though no child can be blamed in a criminal sense) is hardly compassionate. Those children whose youth and innocence have been robbed are the ones most in need of the counseling, therapy, and treatment that can flow from a finding of delinquency. The majority stated that children had a “special vulnerability” and the dissent hardly disagreed. Rather, this vulnerability is a key part of why the dissent believed the majority’s approach was incorrect, and disserved vulnerable children by denying them bold corrective action (not criminal prosecution) when they were ensnared in risky, dangerous, and illegal behavior.
b. The majority stated “Children are the victims, not the perpetrators, of child prostitution. Children do not freely choose a life of prostitution, and experts have described in detail the extent to which they are manipulated and controlled by their exploiters.” Do you agree?
I agree 100 percent. Prostituted children are victims in every sense of the word. When I served as Deputy Assistant Attorney General in the Office of Legal Policy in the Department of Justice, I helped supervise what became the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (the “PROTECT Act”), which “comprehensively strengthens law enforcement’s ability to prevent, investigate, prosecute and punish violent crimes committed against children.” Justice Department Fact Sheet (April 30, 2003). As part of that initiative, I worked closely with the National Center for Missing and Exploited Children. I have strongly supported the work of anti-trafficking heroes like the International Justice Mission. In the B.W. case, there was no daylight between the majority and the dissent at the human level – all shared the heartbreak at the circumstances that led to this case and the anger at the evil and abuse that had befallen this precious girl. Neither the majority nor the dissent saw the girl as a perpetrator – of course she was a victim. But part of her victimization was leading her to engage in conduct that violates the criminal law (and is, of course, horribly dangerous for children, or anyone, to engage in). The question was how to deal with these tragic circumstances under the law and in a way that supports her rehabilitation. This was a heartbreaking case, but I believe the dissenting opinion by Justice Wainwright better articulated the law as written.
c. Do you believe that 14-year-olds possess the mental capacity to consent to sex?
Sexual consent laws vary from state to state. In Texas, the legal age of consent is 17.
The dissent you joined cited Justice Scalia’s dissent in Roper Simmons, 543 U.S. 551 (2005). Under what circumstances do you believe Supreme Court dissents should guide lower courts as to the proper application of precedent?
It is never appropriate for lower courts to depart from controlling Supreme Court precedent. If confirmed, I will follow all applicable Supreme Court precedent fully, fairly, and faithfully with zero hesitation.
In 2008, you wrote an article praising the U.S. Supreme Court’s decision in District of Columbia v. Heller. You specifically praised the fact that the Supreme Court’s analysis focused on finding the original meaning of the words in the Second Amendment and said, “[f]or me, this focus on the purported original meaning carries both legal and personal significance,” because, among other things, you are “a licensed-to-carry Texas Supreme Court justice.” (Constitution Day Teaches Us Importance of Freedom, Flower Mound Leader (September 21, 2008)). Please elaborate on what you meant when you wrote that the Heller decision carries “personal significance” to you.
I was referring to the fact that I am licensed to carry a handgun in Texas.
Although you have been on the Texas Supreme Court for several years, it appears that you have very little criminal law experience. My understanding is that the Texas Supreme Court hears only civil cases. You also said on your Questionnaire that 100% of your law practice was in civil cases. (Willett SJQ at 70) This is concerning to me because, according to the Administrative Office of the U.S. Courts, the Fifth Circuit heard nearly 2,500 criminal cases last year alone. (U.S. Courts of Appeals Federal Judicial Caseload Statistics (March 31, 2017))
What, if any, criminal law experience do you have?
Federal judges come to the bench from a wide variety of legal backgrounds, and a wealth of academic research confirms the value of career diversity and occupational variety on multi-member appellate courts that thrive on vigorous intra-court debate.
The Supreme Court of Texas, while the state’s highest civil court, is also the court of last resort for juvenile matters.
Moreover, before taking the bench, I served as a Deputy Attorney General of Texas. As chief legal counsel to the state’s chief legal officer, I was involved in the full array of major legal issues confronting Texas, including criminal law matters.
Before that, as Deputy Assistant Attorney General in the Office of Legal Policy in the Department of Justice, I helped supervise what became the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (the “PROTECT Act”), which “comprehensively strengthens law enforcement’s ability to prevent, investigate, prosecute and punish violent crimes committed against children.” Justice Department Fact Sheet (April 30, 2003).
And in then- Governor Bush’s office, I often assisted the criminal justice policy director and lawyers in the general counsel’s office on various matters related to criminal law.
And of course, as a law clerk on the United States Court of Appeals for the Fifth Circuit, I helped my judge and the court resolve numerous criminal law cases.
What, if any, steps are you undertaking to prepare yourself to hear appeals in criminal cases?
My dozen-plus years as a sitting appellate judge have cemented my commitment to the full judicial process: analyzing the arguments presented by counsel; conducting independent legal research; and, conferring with my colleagues and law clerks. That meticulous process applies equally to every case, civil or criminal. Appellate judging, no matter the underlying subject matter, is about reading well, writing well, and working collaboratively.
It has been reported that Brett Talley, a Deputy Assistant Attorney General in the Office of Legal Policy who is responsible for overseeing federal judicial nominations—and who himself has been nominated to a vacancy on the U.S. District Court for the Middle District of Alabama—did not disclose to the Committee many online posts he had made on public websites.
a. Did officials at the Department of Justice or the White House discuss with you generally what needed to be disclosed pursuant to Question 12 of the Senate Judiciary Questionnaire? If so, what general instructions were you given, and by whom?
Without disclosing specific advice by any attorneys, it was my understanding that the instructions were to disclose responsive material truthfully and to the best of my ability.
b. Did Mr. Talley or any other individuals at the Department of Justice or the White House advise you that you did not need to disclose certain material, including material “published only on the Internet,” as required by Question 12A of the Senate Judiciary Questionnaire? If so, please detail what material you were told you did not need to disclose.
It was and remains my understanding that I was required to disclose responsive material, including material “published only on the Internet,” and I have done so truthfully and to the best of my ability.
c. Besides your public Twitter account, Justice Willett, have you ever posted commentary—under your own name or a pseudonym—regarding legal, political, or social issues on public websites that you have not already disclosed to the Committee? If so, please provide copies of each post and describe why you did not previously provide it to the Committee.
It was and remains my understanding that I was required to disclose responsive material, including material “published only on the Internet,” and I have done so truthfully and to the best of my ability.
d. Once you decided to seek a federal judicial nomination or became aware that you were under consideration for a federal judgeship, have you taken any steps to delete, edit, or restrict access to any statements previously available on the Internet or otherwise available to the public? If so, please provide the Committee with your original comments and indicate what edits were made.
You indicate on your Senate Questionnaire that you have been a member of the Federalist Society since 1992 and on the Board of Advisors for the Austin Lawyers Chapter since 2003. The Federalist Society’s “About Us” webpage states that, “[l]aw schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.” The same page states that the Federalist Society seeks to “reorder priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.”
Please elaborate on the “form of orthodox liberal ideology which advocates a centralized and uniform society” that the Federalist Society claims dominates law schools.
Until reading your question, I had never seen this statement and am unsure what the Federalist Society means by it.
As a member of the Federalist Society, explain how exactly the organization seeks to “reorder priorities within the legal system.”
Until reading your question, I had never seen this statement and am unsure what the Federalist Society means by it.
As a member of the Federalist Society, explain what “traditional values” you understood the organization placed a premium on.
Until reading your question, I had never seen this statement and am unsure what the Federalist Society means by it.
Please describe with particularity the process by which these questions were answered.
I received these questions on November 22, 2017. I drafted responses and returned them to the Office of Legal Policy. After conferring with OLP lawyers, I revised and finalized my responses and authorized OLP to submit them.
Texas Supreme Court challengers say court is too Pro-Business, and Specifically Justice Don Willett
Three members of the all-Republican Texas Supreme Court face re-election this year, but two will have to survive primary opponents who accuse the court of becoming too pro-business.
Justice Don Willett, on the court since 2005, faces a familiar opponent — Steve Smith, an Austin lawyer who served two years on the Supreme Court in the early 2000s and narrowly lost to Willett in the 2006 Republican primary.
Justice David Medina, an eight-year incumbent, has two challengers who question his ethical history: John Devine, a former district judge from Hockley, and Joe Pool Jr., a lawyer and oil and gas executive from Dripping Springs.
Willett and Medina have substantial fundraising advantages. Both also know it is rare for a Supreme Court incumbent to lose a Republican primary — though that fact might provide mixed comfort for Willett. It was his opponent, Smith, who ousted a sitting justice in 2002, only to lose to a party establishment candidate in the 2004 GOP primary.
Justice Nathan Hecht, the longest-serving member of the court, has no primary opponent. However, the 23-year justice is the only incumbent to draw a Democratic opponent for the November general election — San Antonio lawyer Michele Petty.
The other statewide appellate court, the Texas Court of Criminal Appeals, has three Republican incumbents running for re-election without primary opponents.
Smith, who lost to Willett by only one percentage point in the 2006 primary, said he is running again to expose the corrosive influence of big business on the court “in general and Judge Willett specifically.”
Tort reform has gone too far, limiting the rights of ordinary Texans while benefitting insurance companies and corporations, and opinions written by Willett have improperly stretched tort reform’s pro-business reach even further, said Smith, whose campaign website deconstructs several Willett decisions.
“It’s time to quit just being happy we have Republicans and start looking at how Republicans are governing,” Smith said.
Willett denies the accusation of bias and dismisses Smith, who is making his fifth run for the Supreme Court, as a gadfly and opportunist hoping to hit the lottery with an electoral victory.
“I revere the law,” Willett said. “I believe that judging — safeguarding our liberties and deciding disputes peaceably, with wisdom and evenhandedness — is a noble enterprise.”
Willett said his candidacy is supported by a long list of people versed in appellate law — former GOP justices, solicitors general, state bar presidents and top lawyers.
“I am the consensus conservative choice from every corner of the conservative movement: pro-life, pro-faith, pro-family, pro-liberty, pro-Second Amendment, pro-private property rights and pro-limited government,” he said.
Both candidates emphasize their conservative philosophies.
Willett was a lawyer for then-Gov. George W. Bush for four years and followed Bush to the White House, where he served as a special assistant in the office of faith-based initiatives. A TV ad — made possible by $1.4 million in his campaign account as of April 19 — quotes Focus on the Family founder James Dobson, who describes Willett as “the most conservative justice on the Texas Supreme Court.”
Smith, whose campaign had less that $2,300 in the bank in mid-April, said Willett’s fundraising should raise eyebrows. “That’s not from average Texans; that’s from big business, basically. They’re getting somebody who has a business interest — a bias in favor of business,” he said.
Money could be factor
Medina was general counsel for Gov. Rick Perry, who appointed him to the Supreme Court in 2004, and also served as a district judge and litigation counsel for Cooper Industries.
Medina touts endorsements from former Republican Supreme Court justices and conservative organizations and promises to be impartial and independent.
Both of his opponents say the Supreme Court has adopted an improper pro-business bias, and they point to a Texas Watch study that found the nine-member court overturned jury decisions in 74 percent of consumer cases decided since 2004.
For Pool — who calls himself a Christian constitutional conservative — that statistic stands in opposition to the Texas Constitution provision that says, “The right of trial by jury shall remain inviolate.”
“That is not conservatism,” said Pool, a 32-year lawyer and son of former at-large Texas Congressman Joe Pool. “Conservatism means that you uphold the Constitution; you don’t reinterpret it.”
Devine, best known for fighting off a lawsuit after he posted a painting of the Ten Commandments in his Harris County courtroom in 2000, said he hopes to restore balance to the court.
“I think there is a significant leaning to corporate interests over individual Texans,” he said. “I’m a constitutional constructionist. When a judge makes a decision, he has to look within the four corners of the Constitution.”
Devine and Pool also say they want to restore integrity to the court, alluding to headlines about Medina’s use of campaign money for personal travel between Austin and his Houston-area home. Medina repaid more than $57,000 in travel costs in 2008, saying he had received bad advice on the practice.
Money could be a factor in the race, with Medina’s campaign having almost $145,000 available as of April 19 — a relatively low total when compared with other incumbents but well ahead of his opponents: $5,805 for Devine and $1,112 for Pool.
Don Willett serves on the United States Court of Appeals for the Fifth Circuit.
Before joining the federal judiciary, Judge Willett served a dozen years on the Supreme Court of Texas. He has devoted his professional life to public service, and prior to becoming a judge, he served as legal counsel to a Texas Attorney General, a Texas Governor, a U.S. Attorney General, and the President of the United States.
Raised by a widowed mom in a doublewide trailer in a town of 32 people, Judge Willett is his family’s first college graduate. He earned a triple-major BBA from Baylor University and then three degrees from Duke University: JD with honors, MA in political science, and LLM in judicial studies.
After law school, he clerked for Judge Jerre S. Williams on the U.S. Court of Appeals for the Fifth Circuit, and then practiced law at Haynes and Boone, LLP before entering public service.
Judge Willett publishes widely and speaks frequently throughout the country. He is a Senior Lecturing Fellow at Duke University School of Law and will soon be the Jurist in Residence at J. Reuben Clark Law School at Brigham Young University. He is the former editor in chief of Judicature—The Scholarly Journal For Judges, and has been honored four years in a row for “exemplary legal writing” by The Green Bag. He is a member of the American Law Institute, and a Life Fellow of the American, Texas, and Austin Bar Foundations.
A native Texan, Judge Willett is a former rodeo bull rider and professional drummer, and in 2015 he was named the Tweeter Laureate of Texas. He and his radiant wife, Tiffany, are the exhausted cofounders of three wee Willetts.