Federal Judges, Judicial Nominations, Social Media, State Judges

Was A Possible Judicial Nominee Told To Curb His Twitter Use By... The Trump Administration, Of All People?

Not exactly -- but other authorities have asked him about the subject.

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Justice Don Willett -- tweeting, I presume (photo by yours truly).

Justice Don Willett — tweeting, I presume (photo by yours truly).

Last week, I heard an interesting rumor relating to the Trump administration’s ongoing judicial selection process — specifically, the previously discussed soap opera horse race for a coveted Texas seat on the U.S. Court of Appeals for the Fifth Circuit.

From my source, a prominent lawyer in conservative circles:

Justice Willett was asked during his White House interview whether he would promise to stop tweeting if he joined a federal court, and he refused to agree. This, ironically, has put him off the front-runner status.

I had two reactions. First, the rumor made a certain amount of sense; it might explain why Justice Don Willett, who was on then-candidate Donald Trump’s list of 21 possible Supreme Court nominees, wasn’t a shoo-in for the Fifth Circuit.[1]

Second, the rumor made no sense whatsoever. Justice Willett has been widely hailed as a model of responsible tweeting, lauded by judicial ethics officials and featured in CLE sessions as an uplifting example of how a jurist can positively engage the public and boost civic literacy while upholding the dignity of the office. It’s inexplicable — or at least a bit rich — for Justice Willett, a model of responsible tweeting, to get grief over this from the administration of a man who has been criticized for, well, less than responsible tweeting.

My source, while well connected in conservative legal circles, did not have firsthand knowledge of the events in question. So I did some digging into this rumor.

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I reached out to Justice Willett, who declined to comment. But other sources close to the situation filled in additional details.

Justice Willett interviewed with the White House (although not with President Trump personally) for the Supreme Court spot of the late Justice Antonin Scalia back in mid-January of this year. Tweeting never came up during his interview. Later, after the president nominated now-Justice Gorsuch, the White House turned attention to circuit nominations, but felt it unnecessary for Justice Willett to fly back to D.C. for an additional Fifth Circuit interview. So Justice Willett had one White House interview for federal judicial office, and he was never asked about Twitter.

During the spring, the justice interviewed with the Texas senators’ Federal Judicial Evaluation Committee, and later with Senators John Cornyn and Ted Cruz themselves. Twitter came up in these conversations, but it was never framed as, “Do you commit to stop tweeting if appointed?” It was more neutral, along the lines of, “Would you continue to tweet while on the Fifth Circuit?”

My sources (and again, Justice Willett declined comment) say the justice indicated his preference would be to tweet less frequently and on a more limited scope of matters (e.g., focusing on civics education). But he never said anything definitive or defiant — e.g., “Delete my account? Delete YOUR account!” — and he wasn’t called upon to make a “no tweeting” promise.

Would Justice Willett be willing to cease and desist from tweeting if offered a Fifth Circuit slot? We hear through the grapevine that he would be so willing (and would just become a lurker, like certain Supreme Court justices).

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But should Justice Willett have to leave the Twitterverse? My own view (and an admittedly biased one, as an avid tweeter and member of #appellatetwitter myself): Justice Willett’s tweeting should in no way harm his Fifth Circuit prospects. If anything, it should help them, showing his ability to exercise good judgment, over a sustained period of time, while educating the public about the judiciary. It’s no different from giving a speech to a bar association or being interviewed at an event, which state and federal judges, including SCOTUS justices, do all the time.

Justice Willett, the “Tweeter Laureate of Texas,” does a sterling job of humanizing judges (something I’ve supported for years, dating back to my days spent Underneath Their Robes). And he does so with consistent good cheer, something in short supply today. This should be encouraged, not punished.

Finally, how awesome would it be to have a federal appellate judge — or even a U.S. Supreme Court justice — on Twitter? #BeStillMyHeart!

[1] Five of the original 11 SCOTUS short-listers (those announced in May 2016) are state high-court justices, and three of them are now federal circuit nominees. The two others are Justice Thomas Lee of Utah, who has no vacancy in his circuit, and Justice Willett of Texas, which has not one by two vacancies — prompting prominent conservatives like Hugh Hewitt to wonder, “Where’s Willett?”

It’s also worth noting that Justice Willett enjoys strong conservative support, from such figures as Energy Secretary Rick Perry and Texas Lieutenant Governor Dan Patrick. So the base could be quite irate if Justice Willett were snubbed.

Earlier:

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].

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