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Dear Justice Willett: On Women’s and LGBTQ Rights, Your Words Matter

The record of Don Willett, Trump’s most recent pick for a lifetime appointment to the Fifth Circuit Court of Appeals, should trouble all of us – and especially those who care about the rights of women, and of those who identify as LGBTQ.  As the full Senate considers his nomination this week, Senators should know that when he was given a chance to explain his past statements before the Judiciary Committee, some of his answers sounded more like a guilty 17-year-old’s list of excuses than the reasoning expected of a state Supreme Court justice.

At his hearing, Justice Willett ducked question after question from ranking member Senator Dianne Feinstein, and refused to disavow a memo he wrote when he was an advisor to then-Texas governor George W. Bush in which he demonstrated his contempt for efforts to advance women’s workplace rights. In the memo, Justice Willett expressed discomfort with a gubernatorial proclamation honoring the Texas Federation of Business and Professional Women. Specifically, he said,

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). Issue-wise, they support the ERA, affirmative action, abortion rights, legislation adding teeth to the Equal Pay Act, etc. and they regularly line up with the AFL-CIO and similar groups. . . . The group is quite active politically . . . and publishes research papers on issues like pay equity, abortion rights, etc. The proclamation can perhaps be re-worded to omit these ideological hot buttons while still respecting the contributions of talented women professionals. But I strongly resist anything that shows we believe the hype.

By refusing to clearly renounce his past statements that pay discrimination, sexual harassment, and other forms of sex discrimination that women face in the workplace are “allegation[s]” and “hype” that Justice Willett “strongly resist[s]” and does not “believe,” he demonstrates his unwillingness to hear sexual harassment and sex discrimination claims impartially—not to mention reproductive rights claims.  Were he confirmed, he would be in a position to compound the harm of harassment and other forms of discrimination that women and others across the country confront daily. Litigants coming before Justice Willett, if he were confirmed to the Fifth Circuit, would have reason to question whether their claims of discrimination, including sexual harassment and pay discrimination, would be fairly and impartially heard or, instead, treated as “hype” to “debunk.” This should disqualify him from the bench, especially at this important #metoo moment.

In his subsequent answers to Senator Feinstein’s Questions for the Record, Justice Willett points to his community service efforts with women’s organizations, his childhood experiences and his personal treatment of his female employees, but his personal relationships with women and service on nonprofit boards do not absolve him of responsibility for the positions he has taken in his professional capacity.

In particular, Justice Willett’s judicial decisions as a Texas Supreme Court Justice highlight the troubling positions he has taken in his professional capacity. One such decision is Pidgeon v. Turner, No. 15-0688 (Tex. 2017). In Pidgeon, he voted to limit same-sex married couples’ rights when he joined a majority opinion ruling that city employees who were married in other states were not automatically entitled to spousal benefits, despite the Supreme Court’s decision in Obergefell v. Hodges. His willingness to sign on to a cramped interpretation of controlling Supreme Court precedent is yet another reason that he should not be confirmed to the federal bench.

Not only are his judicial decisions on LGBTQ rights troubling, but so are comments he has made on social media. Justice Willett authored a flippant tweet that was dismissive, if not disparaging, of marriage equality, tweeting after the Obergefell argument that he, “could support recognizing a constitutional right to marry bacon,” when at the same time, millions across the country were emotionally and joyously celebrating their newfound rights. When asked about the tweet at his hearing, and again in his Questions for the Record, Justice Willett maintained that it was a joke, despite the disdain he showed for the rights of LGBTQ people in the Pidgeon v. Turner decision.

At his hearing, Justice Willett also faced a series of questions about a 2014 tweet in which he quoted a Fox News article about a transgender female high school student who joined her school’s softball team with the added caption, “Go away A-Rod,” equating this transgender female baseball player with a popular male professional baseball player.  Facing a volley of strong criticism from Senators Leahy and Franken for this blatantly transphobic comment, Justice Willett’s response was that he was “carried along by the stream of current events” and that the tweet was an “off-kilter attempt at levity.” When asked again in subsequent Questions for the Record, he drilled down, saying that the tweet was a “lighthearted joke.” But in fact, referring to trans people by their assigned gender at birth, rather than by their gender identity, is textbook discrimination – and anything but funny to trans individuals or anyone else. Justice Willett’s weak response likewise would give LGBTQ people coming before his court, if he were confirmed, reason to doubt they would be treated fairly.

Justice Willett has characterized his own record as a jurist in ideological terms: “I’ve built a record that is widely described – well, universally described – as the most conservative of anybody on the [Texas] Supreme Court. . . . I’m universally regarded to be the most conservative member of the court, which is a label that I accept with, frankly, gladness and gusto.” The public should have no reason to doubt his own words. If confirmed, Justice Willett will almost certainly vote to curtail the rights of women and LGBTQ people, restricting and weakening civil rights. The Senate should reject Justice Willett’s nomination to the Fifth Circuit this week.