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Don Willett Defends Tweets at Senate Confirmation Hearing

Texas Supreme Court Justice Don Willett, a nominee of President Donald Trump to a federal court, defended past tweets about transgender people and same-sex marriage as jokes at a confirmation hearing Wednesday.

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Texas nominees to the 5th Circuit Court of Appeals James C. Ho (left) and Don R. Willett are sworn in during a U.S. Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, D.C., on Nov. 15, 2017. 
Texas nominees to the 5th Circuit Court of Appeals James C. Ho (left) and Don R. Willett are sworn in during a U.S. Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, D.C., on Nov. 15, 2017. Photo credit: Allison Shelley / Texas Tribune

This article originally appeared in The Texas Tribune

A Texas Supreme Court Justice’s popular Twitter account, and its future, drew sharp questions from U.S. senators Wednesday as two of President Donald Trump’s Texas nominees for federal court openings faced their confirmation hearings.

Texas Supreme Court Justice Don Willett and Dallas appellate attorney Jim Ho, both nominees to the powerful, conservative U.S. 5th Circuit Court of Appeals, defended their past statements and legal work in a joint hearing before the Senate Judiciary Committee

During more than two hours of questioning, senators directed the vast majority of their attention to Willett, a longtime judge and social media phenomenon who has drawn both praise and criticism for his prolific Twitter account. Senators took issue with the “Tweeter Laureate” both for his outsized presence on the social media platform and for a pair of particularly controversial tweets related to LGBT issues.

One 2014 tweet quoted a Fox News article about a transgender female high school student who joined her school’s softball team.

Willett insisted that he had not meant to demean the student, though the article he quoted referred to her as “male.”

“I don’t entirely believe you,” U.S. Sen. Al Franken, a Minnesota Democrat, shot back.

Willett also drew criticism for a 2015 tweet that critics have argued trivializes the issue of same-sex marriage:

The justice insisted he had meant only to inject some “levity” into a country polarized by recent U.S. Supreme Court arguments on the right to same-sex marriage. Lambda Legal, which advocates for LGBTQ issues, has come out against Willett, citing his track record as a judge in Texas, including decisions related to same-sex marriage.

Willett told the committee several times that if he resumes tweeting after being confirmed to the bench, his focus would be on civic education. “It’d be above the fray,” he said.

“Don’t you think the wiser course would be to just not do it?” U.S. Sen. John Kennedy, a Louisiana Republican, asked him.

“You and my wife have a mindmeld on this,” Willett joked in response.

Willett also faced backlash for a 1998 memo he wrote as a staffer in the office of then-Texas Governor George W. Bush. In that document, he advised Bush to revise a proclamation he planned to issue in honor of the Texas Federation of Business and Professional Women because Willett “resisted the proclamation’s talk of glass ceilings, pay equity (an allegation that some studies debunk)… and the need generally for better working conditions for women (read: more government).”

“I am the first woman on this committee… It’s been a struggle for equality,” U.S. Sen. Dianne Feinstein, a California Democrat, said. “Some comments you made in 1998 concern me.”

Willett insisted that he had merely been advising his superiors in the governor’s office not to take sides on political issues in a document intended to be ceremonial. But several Democratic senators questioned whether Willett had shown appropriate concern for women’s issues.

“Victims of sexual harassment are asking us all to take sides,” U.S. Sen. Dick Durbin, an Illinois Democrat, said.

Ho, sitting to Willett’s right before the panel of senators, dodged much of the committee’s scrutiny. The little attention he received largely related to his contributions to the infamous 2002 “Bybee memo,” a product of then-President George W. Bush’s administration that authorized the use of torture against certain detainees. Ho wrote a memo which is cited in the Bybee memo, but that was not made available to the committee due to attorney-client privilege, Ho said.

Democratic senators took issue with the omission, calling it one of many flaws in the confirmation process led by a Republican-dominated Congress.

“Mr. Chairman, there’s a point at which this process becomes a joke of just ramming people through,” said U.S. Sen. Sheldon Whitehouse, a Rhode Island Democrat. “This is really just embarrassing.”

Both Ho and Willett received the American Bar Association‘s highest ranking of “well qualified” and are well-regarded in the legal sphere, at the state level and nationally.

Both Texans in the U.S. Senate, Republicans John Cornyn and Ted Cruz, serve on the judiciary committee and expressed deep support for both nominees. Cornyn said Wednesday that Willett and Ho are “two stars in the Texas legal firmament already.” Texas Attorney General Ken Paxton said in a statement Wednesday that both men are “brilliant legal minds who will honor the Constitution.”

President Donald Trump nominated Willett and Ho in late September after a protracted selection process reportedly delayed by Republican infighting. Their positions on the court require a vote from the full U.S. Senate, which is unlikely to come before December. The nominees must first win approval from the judiciary committee, whose members have a week to submit additional written questions.

So far, two of Trump’s judicial nominees for openings in Texas — U.S. Attorneys Erin Angela Nealy Cox and John F. Bash — have been confirmed. Several other Texas nominees, including two for U.S. attorney positions and five for district judgeships, await confirmation. Among them is First Assistant Attorney General Jeff Mateer, who has drawn widespread criticism for a 2015 assertion that transgender children are part of “Satan’s plan.” Mateer’s name has not been withdrawn from consideration, though in the two months since his nomination, he has yet to fill out the Senate committee’s standard questionnaire for judicial nominees.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

Emma Platoff is a breaking news and civil courts reporter at The Texas Tribune, where she started as a fellow in 2017. She is the first to fill either role. A recent graduate of Yale University, Emma is the former managing editor of the Yale Daily News and a former intern at The Philadelphia Inquirer and the Hartford Courant.

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Report: Trump’s Judicial Nominee Called Transgender Kids Part of “Satan’s Plan”

Jeff Mateer, one of President Donald Trump’s latest judicial nominees and a high-ranking official in Texas Attorney General Ken Paxton’s office, said transgender children are part of “Satan’s plan” in a May 2015 speech, CNN reported.

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This article originally appeared in The Texas Tribune

Jeff Mateer, a high-ranking official in Texas Attorney General Ken Paxton‘s office whom President Donald Trump has nominated for a federal judgeship, said in speeches in 2015 that transgender children are part of “Satan’s plan” and argued same-sex marriage would open the floodgates for “disgusting” forms of marriage, according to CNN.

“In Colorado, a public school has been sued because a first grader and I forget the sex, she’s a girl who thinks she’s a boy or a boy who thinks she’s a girl, it’s probably that, a boy who thinks she’s a girl,” Mateer said in a May 2015 speech first reported by CNN, referencing a Colorado lawsuit that involved a transgender girl’s parents suing her school for prohibiting her from using the restroom she preferred. “I mean it just really shows you how Satan’s plan is working and the destruction that’s going on.”

In the same speech, Mateer also criticized the 2015 U.S. Supreme Court decision legalizing same-sex marriage as taking the nation back to a time of “debauchery.”

“I mean, it’s disgusting,” he said. “I’ve learned words I didn’t know. There are people who marry themselves. Somebody wanted to marry a tree. People marrying their pets. It’s just like — you know, you read the New Testament and you read about all the things and you think, ‘Oh, that’s not going on in our community.’ Oh yes it is. We’re going back to that time where debauchery rules.”

Last week, Trump nominated Mateer as a district judge on the U.S. District Court for the Eastern District of Texas.

Paxton and Mateer’s office did not respond to The Texas Tribune’s request for comment.

Sharon McGowan with the LGBT legal advocacy group Lambda Legal called Mateer’s nomination the “latest slap in the face with respect to the LGBT community” in a news release Wednesday, and said advocates were working to “sound the alarm across the country to ensure Americans know the dangers of these nominations.”

Mateer, who joined Paxton’s office in 2016, has a long record of championing religious expression in the public eye. Before his stint as Texas’ first assistant attorney general, he spent six years heading the legal team at the First Liberty Institute, a Plano-based conservative legal defense foundation with a history of pursuing cases involving government entities engaged in disputes over religious liberty.

The group (which added “First” to its name in 2016) sued an East Texas high school last year for preventing cheerleaders from carrying banners with bible verses during athletic events. It also waged a battle in 2015 against an ordinance enacted by the city of Plano that extended anti-discrimination protections to include sexual orientation and gender identity.

Mateer was one of five Texas judicial nominations Trump made last week and among two with ties to the First Liberty Institute. Trump’s other Texas nominations were:

  • Matthew Kacsmaryk, a deputy general counsel to the First Liberty Institute, to be a district judge on the U.S. District Court for the Northern District of Texas.
  • Walter David Counts III, a United States Magistrate Judge, to be a district judge on the U.S. District Court for the Western District of Texas.
  • Fernando Rodriguez, who currently works as a field office director for International Justice Mission in the Dominican Republic, to serve as a district judge on the U.S. District Court for the Southern District of Texas.
  • Karen Gren Scholer, a partner at Carter Scholer PLLC in Dallas, to be a district judge on the U.S. District Court for the Northern District of Texas.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

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[gdlr_notification icon=”fa-camera” type=”color-background” background=”#999999″ color=”#ffffff”]Top image: Jeff Mateer. / photo credit: Screen capture / Vimeo[/gdlr_notification]

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Gorsuch Signals an Extreme Threat to LGBT Rights

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[gdlr_notification icon=”fa-flag” type=”color-background” background=”#6f95bd” color=”#000000″]This material was published by the Center for American Progress.
Sharita Gruberg and Rebecca Buckwalter-Poza contributed to this report.[/gdlr_notification]

During Tuesday’s confirmation hearing for President Donald Trump’s nominee for the U.S. Supreme Court, Sen. Dick Durbin (D-IL) asked Judge Neil Gorsuch to address cases he ruled on that involved lesbian, gay, bisexual, and transgender, or LGBT, people as a class—a term referring to the reach of equal protection jurisprudence and the heightened scrutiny that courts apply to laws that have a discriminatory effect on certain groups of people.

Judge Gorsuch ducked, replying, “I’ve tried to treat each case and each person as a person—not a ‘this kind of person,’ not a ‘that kind of person.’” Although his response appears innocuous, Gorsuch’s refusal to recognize discrimination against LGBT people as discrimination against members of a class rather than against individuals has devastating implications for the future of LGBT rights. If he is confirmed as a Supreme Court justice, such a limited view of the reach of equal protection could set LGBT rights back for a generation.

The 14th Amendment’s Equal Protection Clause prevents states from denying people the equal protection of the law. When courts review equal protection challenges, they usually apply rational-basis scrutiny. That is, a law will pass muster as long as the state has some viable reason for that law. But courts apply heightened scrutiny when the state targets what is called a suspect, or a quasi-suspect, class—that is, a group that has, among other things, suffered historic discrimination and political disempowerment as a result of an immutable or distinguishing characteristic that defines them as a discrete group. This is the bedrock of equal protection case law.

Resistance to treating LGBT people as a suspect or quasi-suspect class played a key part in Justice Antonin Scalia’s dissenting opinions in critical Supreme Court decisions that expanded LGBT rights, such as United States v. Windsor and Obergefell v. Hodges. In his dissent in Obergefell, Justice Scalia rejected the majority’s holding that—in addition to being included in the right to liberty—marriage equality is “derived from the Fourteenth Amendment’s guarantee of equal protection.” Going further, Justice Scalia called for erasing more than a century of precedent by limiting equal protection to those classes recognized when the 14th Amendment was ratified in 1868, namely race and national origin. By aligning himself with Justice Scalia, Gorsuch’s statements indicate that he, like Scalia, favors narrowing rather than expanding equal protection law. When asked directly by Sen. Dianne Feinstein (D-CA) on Wednesday if he agreed with Justice Scalia that there is no “protection for women or gays and lesbians under the equal protection law” because the drafters of the 14th Amendment did not intend to include them, Gorsuch again demurred, responding that “a good judge respects precedent.”

In addition to Justice Scalia’s rejection of extending the 14th Amendment to LGBT people, in his dissent in Lawrence v. Texas, Scalia claimed that he had “nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.” Two years later, Judge Gorsuch wrote a 2005 National Review article mocking liberals for relying on judges rather than the ballot box to advance marriage equality. Their shared belief that LGBT rights should be subject to the will of the majority, whatever the consequences, rather than protected under the U.S. Constitution, bodes poorly for the future of LGBT equality.

Not only has Gorsuch channeled Justice Scalia, but during his confirmation hearing, he praised a “childhood hero” who denied LGBT people the right to privacy: Justice Byron White. Justice White authored Bowers v. Hardwick, which upheld so-called anti-sodomy laws on the ground that the state of Georgia had a rational basis for its discriminatory law—morality. He also rejected the notion that gay people have a fundamental right to privacy under the Due Process Clauses of the Fifth and 14th Amendments. Instead of using legal language to express that opinion, however, Justice White scoffingly editorialized that there is no “fundamental right to engage in homosexual sodomy.”

To date, many Supreme Court decisions recognizing LGBT rights have rested on the right to liberty under the 14th Amendment’s Due Process Clause. However, previous majority and concurring opinions have laid a foundation for finding that laws targeting LGBT people should be subject to heightened scrutiny. These include the majority in Obergefell — which recognized that the right of same sex couples to marry is derived in part from the 14th Amendment’s Equal Protection Clause and referenced past cases that applied heightened scrutiny in order to invalidate laws imposing sex-based inequality in marriage — and Justice Sandra Day O’Connor’s concurring opinion in Lawrence.

Thus, confirming Gorsuch to the Supreme Court would not preserve a stable status quo: It would keep LGBT rights in limbo. Judge Gorsuch would, just as Justice Scalia did, do everything in his power—regardless of precedent—to block LGBT rights for a generation.

Sharita Gruberg is the Associate Director of the LGBT Research and Communications Project at the Center for American Progress. Rebecca Buckwalter-Poza is a Fellow at the Center.

The Center for American Progress is a progressive think tank dedicated to improving the lives of Americans through ideas and action.

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[gdlr_notification icon=”fa-camera” type=”color-background” background=”#999999″ color=”#ffffff”]Top image: A still taken from the Supreme Court nominee Neil Gorsuch confirmation hearing before the U.S. Senate Judiciary Committee on March 20, 2017. / photo credit: Screencap from CSPAN[/gdlr_notification]

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