All Eyes on Trump SCOTUS List, Twitter Star Willett

The gold standard of excellence for more than 80 years, Bloomberg BNA’s The United States Law Week® is the most authoritative way to keep up with important cases and other legal developments...

By Patrick Gregory

Nov. 9 — Court-watchers have a lot to say about President-elect Donald J. Trump’s list of possible U.S. Supreme Court nominees now that he’s won the election.

One of the most intriguing candidates on the list includes avid Twitter user and Texas Supreme Court Justice Don R. Willett, court-watchers told Bloomberg BNA.

Oddly, Trump’s campaign website no longer features this list, which was released in May and expanded in September. Trump has said he will choose his nominees from that list.

Representatives for the Trump campaign didn’t immediately return a request for comment about the disappearance.

The omission of the list raises the question of whether changes to it are in the works or whether he has abandoned it.


Trump’s SCOTUS List

• Justice Don Willett, Texas Supreme Court
• Judge William H. Pryor Jr., Eleventh Circuit
• Judge Neil M. Gorsuch, Tenth Circuit
• Judge Diane S. Sykes, Seventh Circuit
• Judge Margaret A. Ryan, U.S. COA for the Armed Forces
• Justice Edward Mansfield, Iowa Supreme Court
• Justice Keith R. Blackwell, Ga. Supreme Court
• Justice Charles T. Canady, Fla. Supreme Court
• Chief Judge Timothy M. Tymkovich, Tenth Circuit
• Judge Amul R. Thapar, E.D. Ky.
• Judge Federico A. Moreno, S.D. Fla.
• Chief Justice Robert P. Young Jr., Mich. Supreme Court
• Judge Steven Colloton, Eighth Circuit
• Justice Allison H. Eid, Colo. Supreme Court
• Judge Thomas M. Hardiman, Third Circuit
• Judge Raymond M. Kethledge, Sixth Circuit
• Justice Joan L. Larsen, Mich. Supreme Court
• Justice Thomas R. Lee, Utah Supreme Court
• Judge Raymond W. Gruender, Eighth Circuit
• Justice David R. Stras, Minn. Supreme Court
• Sen. Mike Lee (R-Utah) [declined consideration]


'A Wicked Pen'

Texas Supreme Court Justice Don R. Willett is “a good writer and would be a crowd favorite, thanks to his Twitter feed,” Jason P. Steed, an appellate attorney with Bell Nunnally & Martin LLP, Dallas, said.

“Willett is distinctive because of the persona that he has created for himself on Twitter,” Kenneth Jost, author of the “Supreme Court Yearbook” series and the “Jost on Justice” blog, said.

Jost said that “among the possible nominees, Willett is the one most visibly identified with an originalist, libertarian-minded interpretation of the Constitution.”

“So he perhaps as much as anyone on the list would represent a legitimate heir to Scalia’s legacy,” Jost said.

Justice Antonin Scalia died unexpectedly Feb. 13. The U.S. Senate has refused to take action on President Barack Obama’s nominee, D.C. Circuit Judge Merrick B. Garland.

“I have been a longtime admirer of Justice Willett,” Josh Blackman, a professor at South Texas College of Law Houston who specializes in constitutional law, said.

Blackman said he recently saw Willett give a “deep presentation” concerning “the separation of powers, the rule of law, and the importance of the President’s duty to take care that the laws are faithfully executed.”

“Additionally, he is a brilliant writer, and would bring a wicked pen to the Supreme Court,” Blackman said.

Other Notables

Judge Diane S. Sykes of the U.S. Court of Appeals for the Seventh Circuit is “a brilliant jurist,” who “distinguishes herself with a commitment to the separation of powers and the bill of rights,” Blackman said.

Tenth Circuit Judge Neil Gorsuch “would immediately become a contender for best writer on the Court,” Steed said. “His opinions are always crisp and lucid.”

Justice Thomas Rex Lee of the Utah Supreme Court “would be the Court’s first Mormon and might be a smart political move” to “try to bring Mormons (who typically vote Republican but opposed Trump more than most other Republican constituencies) back into” the party fold, Steed said.

Diversity Lacking?

The list “is notable mainly for its lack of diversity,” Adam Winkler, a professor at UCLA law school, Los Angeles, who focuses on constitutional law, said.

“It’s almost all white men,” Winkler said. “Surprisingly, given Trump’s promise to shake up the establishment, nearly all are sitting judges,” he said.

“One might have expected an outsider like Trump to approach judicial selection differently, with an eye to other types of backgrounds,” Winkler said.

But Jost said many of the potential nominees would add diversity in terms of educational background.

The list is “striking in contrast” to the current justices because only a few potential nominees graduated from Ivy League law schools, he said.

Further, the list deviates from the “recent pattern” of looking to federal circuit courts for Supreme Court nominees, Jost said.

“This is a good thing, as state supreme courts are underutilized pools of talent,” Eugene Kontorovich, a professor at Northwestern University law school, Chicago, said.

It “reduces the hierarchical bureaucraticization of the federal judiciary,” Kontorovich said.

Volokh Conspirator Praise

Eugene Volokh, a law professor at UCLA law school and creator of the conservative Volokh Conspiracy blog, praised the list.

“Based on the about ten people on the list about whom I know something, it’s a very impressive batch,” he said.

Volokh said he “voted against Trump, but I hope the list is an omen of how the new Administration will handle such things.”

Randy Barnett, a professor at Georgetown University Law Center who also writes for the Volokh Conspiracy, had similar praise.

“I know and think highly of several of the judges on this list,” Barnett said.

Barnett said he’s “most concerned that whomever is chosen will be a constitutional originalist’ who will hold all the servants of the people to the text of the Constitution, and not a judicial conservative who defers to the other branches the way Chief Justice Roberts did to uphold Obamacare.”

“I hope Republicans have learned that lesson,” Barnett said.

Pryor Possibility

Perhaps “the most concerning” potential nominee is Judge William H. Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit, Alex Luchenitser of Americans United for Separation of Church and State said.

He has a “history of taking positions that are antagonistic to church-state separation,” Luchenitser said.

He’s “supported the display of the Ten Commandments on public property,” as well as “the opening of meetings of governmental bodies with sectarian prayers,” Luchenitser said.

Further, Pryor ruled “in favor of religiously owned corporations that objected to the contraceptive coverage regulations of the Affordable Care Act,” Luchenitser said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.