In 2017, President Donald 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 once 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. Prior to joining the Fifth Circuit, 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.”
Since his confirmation to the Fifth Circuit, Willett has issued several harmful opinions:
- In June Medical Services v. Gee, he voted to allow an extreme Louisiana anti-abortion law to take effect, even though it was nearly identical to a Texas law that the Supreme Court struck down in 2015.
- In Inclusive Communities Project. v. Lincoln Dev. Co., he cast a deciding vote to undermine the Fair Housing Act, making it very difficult to bring disparate impact claims.
- In Cole v. Carson, Willett dissented from an August ruling by the full court that a permanently injured teenager and his parents receive a trial on their claims that police officers used excessive force in shooting him. After Ryan Cole, a 17-year-old, pointed a gun at his own head during an acute suicidal moment, two police officers shot him multiple times. As a result, Cole now suffers permanent “cognitive impairment, partial paralysis, and other serious mental and physical injuries.”
- In Thomas v. Bryant, he argued in dissent that the court should reverse a finding that a district in Mississippi had been racially gerrymandered to unlawfully dilute the votes of Black residents under the VRA. A majority of judges on the Fifth Circuit, which includes five other Trump appointees, has since voted to rehear the case.
- In Simmons v. UBS Financial Services, Willett held that Title VII does not protect nonemployees from retaliation. James Simmons was employed by a third-party but regularly did business with UBS. After his daughter, an employee of UBS, filed a claim for pregnancy discrimination, UBS froze Simmons out of doing business with them. Despite the fact that the Supreme Court has held that third parties can sue for retaliation, Willett and Duncan held that does not extend to a third party non-employee.
- In Alexis v. Barr, he cast the deciding vote to uphold the deportation of a Richard Lawrence Alexis, a permanent legal resident who had been in the US for almost 30 years, after he pled guilty in state court to possession of less than one gram of a controlled substance. As a result, Alexis was separated from his mother, three siblings, and a young daughter who are all U.S. citizens.
- Although not in the majority, in Mance v. Sessions, Willet voted to reconsider a decision upholding a federal gun law that allows states to establish and enforce their own gun laws.
- In Brackeen v. Bernhardt, Fifth Circuit judges he voted to reconsider a decision that reversed a lower court ruling that found certain provisions of the Indian Children Welfare Act (ICWA) to be unconstitutional. The ICWA established “minimum Federal standards for the removal of Indian children from their families and placement in foster care or in adoptive homes that reflect Indian culture.” It was passed to “in an attempt to fix rampant abuse within child protection measures applying to Native American children.” This gives the new Trump judges on the court an opportunity to weigh in and, potentially, undo crucial provisions of the law.
The Alliance for Justice strongly opposes the consideration of Don Willett for a seat on the U.S. Supreme Court.