Download AFJ Background Report

On September 28, 2017, President Trump nominated Don R. Willett, a justice on the Texas Supreme Court, to the U.S. Court of Appeals for the Fifth Circuit to fill the seat vacated by Emilio Garza, who took senior status in 2012. The seat was left open for five years because Senators Cornyn and Cruz would not agree to confirm any Obama nominee to fill the vacancy.

Justice Willett has bragged about being the “most conservative justice” on the Texas Supreme Court, and that “there is no ideological daylight to the right of me.” In fact, James Dobson, founder of the ultraconservative Focus on the Family, has agreed, also dubbing Willett the “most conservative justice” on the Texas Supreme Court. Willett, a member of the Federalist Society, was on the list of potential Supreme Court nominees that the society presented to President Trump during his campaign. The President said at that time that all of his nominees would “automatically” overturn Roe v. Wade.

Before joining the Texas Supreme Court, Willett dismissed efforts to address inequality for women in the workplace. He ridiculed “talk of ‘glass ceilings'” and the issue of “pay equity;” minimized the challenges of affording quality day care; and dismissed concerns regarding “sexual discrimination/harassment.”

Further, on the Texas Supreme Court, Willett has advanced a judicial philosophy that is, as one journalist noted, a “more aggressive approach to reviewing (and sometimes declaring unconstitutional) government regulations, particularly those that relate to economic and property rights.” The Institute for Justice, a libertarian law firm funded by Charles Koch, has strongly endorsed Willett’s judicial philosophy.

In this context, Willett’s concurrence in Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69 (Tex. 2015) is notable. In Patel, Willett advocated reviving Lochner era jurisprudence, a long-discarded doctrine that was used to strike down minimum wage laws and erode workers’ rights in the name of economic liberty. Willett’s view is far outside the mainstream, repudiated by several prominent conservative jurists, including Chief Justice John Roberts, Justice Clarence Thomas, and Judge Robert Bork.

Willett’s record on the Texas Supreme Court is one that repeatedly sides against workers and consumers, particularly in cases implicating significant civil rights, and has failed to give proper effect to important constitutional rights regarding marriage equality and quality education under Texas law.

Based on Willett’s record, AFJ opposes his nomination.