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NASW Opposes Confirmation of Don Willett to the U.S. Court of Appeals for the Fifth Circuit

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 (ACA) 

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. 

Sex Discrimination  

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. 

LGBT Issues  

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.” 

Voting Rights

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. 

Affirmative Action

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.

The National Association of Social Workers (NASW), in Washington, DC, is the largest membership organization of professional social workers. It promotes, develops, and protects the practice of social work and social workers. NASW also seeks to enhance the well-being of individuals, families, and communities through its advocacy.