ABC News thinks possible SCOTUS pick has "odd social media habits"

The retirement of Supreme Court Justice Anthony Kennedy means pretty much everyone is playing the game of “Who will the next SCOTUS justice be?” It’s almost like playing fantasy sports, but with judges. ABC News is getting in on the game with a semi-profile of 5th Circuit Court of Appeals Judge Don Willett – formerly of Texas’ Supreme Court. Their main problem with Willett…he used to be a prolific Twitter user.

On New Year’s Eve, Fifth Circuit Court of Appeals Judge Don Willett channeled Rick Astley by tweeting “People of Earth—In 2018, @JusticeWillett will never: give you up, let you down, run around, desert you, make you cry, say goodbye, tell a lie, hurt you.”

Before that, Willett, at the time a justice on the Supreme Court of Texas, tweeted out his son confusing “Eminem” and “eminent,” a picture of three puppies and a picture of cornbread shaped like his home state.

But with Supreme Court Justice Anthony Kennedy announcing his retirement on Wednesday, and Willett’s name appearing on a list of Trump’s potential Supreme Court nominees, the judge’s frequent tweeting last year raises questions for some of judicial impartiality.

ABC is also worried Willett’s tweets will somehow come back to haunt him.

Willett hasn’t tweeted since joining the Fifth Circuit Court of Appeals at the beginning of this year, but it remains to be seen whether or not his tweets will interfere with any potential nomination.

“The way justices have survived the gauntlet is by being as low profile as possible,” Geyh said, but he added that it’s unlikely this Senate would not confirm Trump’s nominee.

Yeah…what?

A brief scan of Willett’s Twitter account shows it full of odes to his mother and his love of Calvin and Hobbes. There are a few ‘problematic’ tweets (NOTE SARCASM) including the audacity to discuss his Constitution Day speech last September.

Plus, his meeting with Ronald Reagan speechwriter, Peter Robinson.

And this cosplay as a minuteman.

In other words, give me a break.

Willett started using Twitter because Texas Supreme Court judges are elected officials and Willett wanted to reach out to potential voters in Texas. He’s far from a stuffed up fuddy-duddy, so his love of social media makes a ton of sense. The Atlantic once wrote Barack Obama was the first “social media president” because his campaign made use of Twitter and Facebook to get out messages. Willett was doing the exact same thing before ascending to the federal bench where one isn’t a politician.

The focus on any Supreme Court nominee should be his or her judicial rulings – not whether or not he or she spends time on Twitter sending puns out across the globe. SCOTUSblog has a nice profile on Willett’s judicial philosophy.

Because the Texas Supreme Court hears only civil cases, most of Willett’s judicial track record is limited to that arena. Even within those constraints, though, he has staked an outspoken claim to a libertarian brand of judicial activism that some have termed “judicial engagement.” Defying the conservative orthodoxy of “judicial restraint,” which judges like Robert Bork espoused in rejecting what they saw as the creation by liberal judges of rights not found in the Constitution, Willett views the role of judges as protecting individual liberty by striking down laws that infringe on it. Like Justice Neil Gorsuch when he was a judge on the U.S. Court of Appeals for the 10th Circuit, Willett has made a point of writing separately to declare his principles. As a profile by Eric Benson in the Texas Observer points out, “Willett’s most famous opinions have come in cases that are deceptively narrow, but which in fact offer a map to reshaping the role of the judiciary.” An early example is Robinson v. Crown Cork & Seal, in 2010, in which Willett concurred in a decision striking down a statute that shielded a company from successor liability in a tort case. In his separate opinion, Willett proclaimed: “If judicial review means anything, it is that judicial restraint does not allow everything. Yes, courts must respect democratically enacted decisions; popular sovereignty matters. But the Texas Constitution’s insistence on limited government also matters, and that vision of enumerated powers and personal liberty becomes quaint once courts (perhaps owing to an off-kilter grasp of ‘judicial activism’) decide the Legislature has limitless power to declare its actions justified by police power. At that constitutional tipping point, adjudication more resembles abdication.”

The Dallas Morning News also has a good profile on Willett and his extremely interesting background in Texas.

Willett, who declined an interview request for this story, was adopted by parents who had not graduated from high school. His father died when he was just 6 years old, and Willett’s mother waited tables at a truck stop near their home in the 32-person town of Talty to make ends meet. As a kid, he also competed in rodeos and was a professional drummer, according to his online bio.

Willett graduated from Baylor University and went on to Duke University for law school. He worked for George W. Bush, both in Texas and in Washington, and served as a deputy attorney general at the U.S. Department of Justice. When he came back to Texas, Willett landed at the Texas attorney general’s office, where he was chief legal adviser to then-Attorney General Greg Abbott until 2005.

Reason’s Damon Root has written favorably of Willett’s past decisions and believes he is the antithesis of Robert Bork – in a good way.

According to Bork’s interpretation, the 14th Amendment offers zero constitutional protection for economic liberty, which means that the courts have no business striking down government regulations on 14th Amendment grounds. Since the amendment does not explicitly refer to economic liberty, Bork reasoned, it does not protect it. When “the Constitution does not speak,” he insisted, we are “all at the mercy of legislative majorities.”

Willett takes a different view. “The Fourteenth Amendment’s legislative record,” he has pointed out, “is replete with indications that ‘privileges or immunities’ encompassed the right to earn a living free from unreasonable government intrusion.”

Willett has even thrown shade in Bork’s direction: “A conservative luminary, Bork is heir to a Progressive luminary, Justice Holmes, who also espoused judicial minimalism. Both men believed the foremost principle of American government was not individual liberty but majoritarianism.” Willett clearly ranks individual liberty first.

We’ll find out July 9th who Trump wants to replace Kennedy. He would be wise to pick Willett.