Fifth Circuit Nominee Confronted on Women’s Rights Issues

Like the man who nominated him to the Fifth Circuit, Texas Supreme Court Justice Don Willett is a prolific Twitter user. (Eric Gay /Associated Press)

WASHINGTON (CN) – A judge known as the “tweeter laureate” of Texas left Senate Democrats exasperated on Wednesday as they questioned the Fifth Circuit nominee about his stance on employment equality for women.

Sen. Dianne Feinstein, D-Calif., began her interrogation of Texas Supreme Court Justice Don Willett by brining up the memo Willett wrote while working in the policy office of former President George W. Bush, then the governor of Texas.

Willett’s memo said there was no place for “talk of ‘glass ceilings’” in a proclamation honoring the Texas Federation of Business and Professional Women.

Parenthetically in the memo, Willett called pay equity “an allegation that some studies debunk,” and he questioned “the need to place kids in the care of rented strangers,” as well as the idea that the government must improve working conditions for women.

Asked by Feinstein if his view on these issues has changed, Willett told Feinstein about his upbringing by a single mother, who he said worked as a waitress and endured “every workplace indignity imaginable.”

Willett also pointed to letters written by his colleagues in Bush’s office at the time, saying they would make clear he does not oppose woman’s rights in the workplace.

Dissatisfied with the answer, Feinstein pressed Willett to state clearly whether he disavowed the content of the memo.

After several minutes of back-and-forth, Willett said he would like to edit the proclamation to make sure it did not endorse specific policy goals, which he said the initial memo did.

More Democrats pressed Willett on the memo as the hearing went on, however, prompting an explanation by the nominee that his memo was an effort to better conform the proclamation to the office’s guidelines.

“There’s no question that stuff is real,” Willett said, referring to barriers women face in business. “The question was, is a proclamation, which is meant to be unifying, uplifting, positive, is that the right vehicle to take sides on the laundry list of specific policy proposals that were being considered by the legislature?”

That answer did not satisfy Democrats either, with Sen. Dick Durbin expressing disappointment before moving on from the subject.

“Senator Feinstein, I tried,” said Durbin, an Illinois Democrat.

Willett, who has been on the Texas Supreme Court since 2005, is perhaps best known for his active use of Twitter, having been declared the Lone Star State’s first “tweeter laureate” by the Texas Legislature in 2015. Such active social media use is unusual for a judge, and Democrats were quick to bring up some of Willett’s more controversial posts.

Responding to a Fox News article in February 2014 on a transgender student being allowed to play on the female softball team at a California high school, Willett wrote: “go away, A-Rod.”

He said the post was an attempt at humor speculating about what Yankees star Alex Rodriguez would do after dropping a challenge to a year-long suspension from baseball, which happened around the time of the tweet.

Willett said the joke was “ham-handed” and that it fell flat, and told the committee he would have no biases against transgender people if confirmed for the seat on the federal appeals court.

Democrats failed to see the humor in the judge’s tweet.

“I don’t entirely believe you,” Sen. Al Franken, D-Minn., said. “I think this was meant to be hurtful. I think it was meant to deride a young woman.”

Willett told senators he had not considered whether he should give up Twitter if confirmed to a position on the Fifth Circuit. He said if he decided to keep his account active, he would focus on using it to improve “national civics IQ.”

A member of the conservative legal advocacy group the Federalist Society, Willett was on President Donald Trump’s short list for nominees to succeed the late U.S. Supreme Court Justice Antonin Scalia.

Justice Neil Gorsuch was confirmed to that post in May. Willett followed Bush to Washington after the former Texas governor won the White House, serving in the White House as a special assistant to the president from 2001 to 2001. Willett also worked at the Justice Department and the Texas attorney general’s office before taking a seat on the Texas Supreme Court.

Another Trump nominee to the Fifth Circuit, James Ho, faced far fewer questions from the Senate on Wednesday.

A son of Taiwanese immigrants, Ho would be the first Asian-American judge on the Fifth Circuit if confirmed. He is a partner at the Dallas office of Gibson Dunn & Crutcher, having served as Texas solicitor general from 2008 to 2010.

Another member of the Federalist Society, Ho clerked for Supreme Court Justice Clarence Thomas and working as chief counsel to Sen. John Cornyn, a Texas Republican who serves on the Judiciary Committee.

Cornyn noted at the hearing that the  learned to speak English by watching Sesame Street as a child.

Durbin and Sen. Sheldon Whitehouse, D-R.I., pressed Ho on a document he wrote while working in the Office of Legal Counsel at the Justice Department. In the infamous memo justifying the government’s use of torture during the Bush administration, Ho’s document was referenced in a footnote.

The Bybee memo, as the paper that references Ho’s work is known, is public, but Ho’s paper itself is not. Ho said he was not involved in the Bybee memo, but that he could not release the document he wrote to the committee because it is covered under attorney-client privilege. Ho said only the client – in this case the government – can waive the privilege.

“I wrote that as an attorney in the Justice Department, it is my understanding that that document is subject to privilege so it is not up to me to decide who should get to see that memo,” Ho said.

Sen. Whitehouse described Ho’s document as a key point in evaluating his views on the issue of torture.

“It’s also a matter for the committee,” Whitehouse told Ho.  “We are reviewing somebody for a fairly serious position in the judiciary of the United States, I think it’s fair to ask that documents that they’ve written before be provided.”

The committee was also set to hear testimony from four nominees for federal district courts, but a series of votes on the Senate and members’ obligations before other committees lead members to skip questioning the nominees.

Three of the nominees are for courts in Kentucky. Rebecca Jennings, a lawyer with the Louisville, Ky., firm Middleton Reutlinger, is up for a seat on the U.S. District Court for the Western District of Kentucky, while Robert Wier is up for a seat on the U.S. District Court for the Eastern District of Kentucky, where he is currently a magistrate judge.

Claria Boom, a partner at the Lexington, Ky., firm Frost, Brown, Todd, is up for a seat shared by both courts.

The other nominee the committee was set to consider on Wednesday is John Broomes, an attorney at the Hinkle Law Firm who is up for a seat on the U.S. District Court for the District of Kansas.

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