WASHINGTON, D.C. - The National Association of Social Workers (NASW), a
membership organization of more than 120,000 members with a long history of
advocating for the nation’s most vulnerable and underrepresented populations, is
writing in opposition to the confirmation of Don Willett to the U.S. Court of
Appeals for the Fifth Circuit.
Judge Willett, a justice on the Texas Supreme Court
since 2005, has held radical positions that have impinged on the rights of
vulnerable and marginalized Americans throughout his career, both on and off the
bench, and NASW opposes this federal lifetime appointment to the Fifth
Circuit Court. The following is a more detailed description of our deep
concerns about his judicial decisions and political positions.
Patient Protection and Affordable Care Act
In concurring with
a ruling against the Affordable Care Act - Robinson v. Crown Cork & Seal Co - Justice
Willett criticized the act, indicating that “a U.S. Supreme Court decision upholding the
law would destroy the notion of limited federal powers. Government will have
carte blanche to control every sphere of your everyday life.” Judge Willett’s
analysis strongly supported those who seek to deny the authority of Congress to
pass comprehensive health care reform.
As an aide to Governor George W. Bush, Mr. Willett
wrote a memo in 1998 in which he expressed antipathy to women’s rights in the
workplace. In opposing a proclamation declaring Business Women’s Week in Texas,
Judge Willett wrote, “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).” These offensive
remarks reflect a profoundly sexist mind-set and call into question whether
Justice Willett would uphold federal civil rights laws like Title VII and the
Lilly Ledbetter Fair Pay Act.
Justice Willett was part of a Texas Supreme Court
majority in Pidgeon v. Turner that
held in June 2017 that city employees who were married in other states did not
have any automatic rights to benefits. This position was despite the U.S.
Supreme Court’s 2015 Obergefell v. Hodges decision that
ruled in support of same-sex marriage. In the past, Justice Willett has
ridiculed the LGBT community in his tweets. In one, issued the day after the Supreme
Court oral argument in 2015 in Obergefell v. Hodges, Justice Willett
sarcastically wrote, “I could support recognizing a constitutional right to
marry bacon.” In 2014, Justice Willett re-tweeted a news story about a
transgender student making a girls’ softball team, adding “Go away, A-Rod.”
When he worked in the Texas Attorney
General’s office from 2003 to 2005, Mr. Willett participated in two voting
rights cases in which he defended Texas from claims of Voting Rights Act violations.
In Barrientos v. Texas,
he drafted a brief asking the U.S. Supreme Court to affirm a lower court
decision that dismissed a complaint filed by 11 state senators who alleged that
the Voting Rights Act had been violated when the Texas legislature passed a
second congressional redistricting plan after the 2000 U.S. Census. Although the
Supreme Court did affirm the lower court, it later supported another challenge
to the Texas voting rights redistricting. In Sessions v. Perry , Mr.
Willett assisted with trial preparation in another challenge to the Texas congressional
redistricting plan. In this case, the Supreme Court struck down one of the
congressional districts because it diluted Latino voting power and violated the
Voting Rights Act, but Mr. Willett had left the office by then and
did not work on the Supreme Court briefing.
In a 1999 law review article, Mr. Willett praised the
Fifth Circuit’s decision in Hopwood v. Texas , which ruled in favor of white plaintiffs who challenged
the constitutionality of race-conscious criteria in college admissions. Mr.
Willett and his coauthor wrote, “Hopwood has given Texas the chance to
build a new vision based on affirmative opportunity for all instead of
affirmative action for some.” He and his co-author added that “the courts and
the public have rightly recognized that conventional affirmative action has failed,”
and “the judgment of history is clear that the vast majority of minorities are
not held back by racial bigotry, but by fractured families and poor K-12
schools that deny them the credentials required to enter elite social institutions.”
To NASW’s disappointment, Justice Willett’s name has
already been placed in nomination to become a federal Circuit Court justice. It
is now up to the Senate Judiciary Committee members to be vigilant and not allow
him to rely on the manipulative strategy of avoiding pointed questions in
testifying before the Senate. Instead, he must be questioned about his documented
extreme views and questionable respect for the important role that judges play
in our democracy.