Supreme Court

The Senate Democrats' Pathetic Attack on Justice Don Willett

The 5th Circuit nominee faces the Senate Judiciary Committee.

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The Senate Judiciary Committee on Wednesday held confirmation hearings on Don Willett, one of President Donald Trump's nominees to the U.S. Court of Appeals for the 5th Circuit.

Willett is an outspoken jurist who has served as a justice on the Texas Supreme Court since 2005 and who has written a number of opinions on highly contentious legal issues. So naturally I expected Willett to be grilled by Senate Democrats about those rulings and the thorny legal topics they address. Call me naive, but I was genuinely looking forward to some meaningful interactions between Willett and his Democratic interrogators.

But rather than querying Willett about his court opinions or his judicial philosophy, the Democrats beclowned themselves, wasting valuable Q&A time on a series of weak and frankly embarrassing questions about some jokes that Willett told on Twitter.

Twitter

Sen. Patrick Leahy (D-Vt.) actually asked Willett how he could claim to respect Supreme Court precedent when Willett had "equated [the] constitutional right to same-sex marriage with a constitutional right to marry bacon." Leahy then cited a goofy tweet as evidence of Willett's "attack" on SCOTUS precedent.

It went downhill from there. One particularly low point came when Sen. Al Franken (D-Minn.), a former professional comedian, repeatedly insisted that one of Willett's obvious twitter jokes was not actually a joke. It was pathetic.

Ironically, the one senator who asked a genuinely challenging and even treacherous question for Willett was Louisiana Republican John Neely Kennedy. "How should a federal judge," he asked, "go about deciding when a right is fundamental in a case of first impression?"

Kennedy was asking Willett to weigh in on a very antagonistic debate. Here's the short version of it: The federal courts don't treat all rights equally. Some rights, such as those spelled out in the Bill of Rights, are deemed to be "fundamental" and are therefore given strenuous judicial protection.

But what about those rights that are not explicitly spelled out in the Constitution? The right to privacy, for example, is not listed anywhere in the document, yet the Supreme Court has recognized it as fundamental and repeatedly safeguarded it from various forms of government regulation. According to some conservatives, such as the late Robert Bork, the Court should not have done so because the Court has no business protecting unenumerated rights in the first place. When "the Constitution does not speak," as Bork put it, we are "all at the mercy of legislative majorities."

In other words, Kennedy asked Willett a pretty hot-button question about both the meaning of the Constitution and the role of a judge in interpreting it. He also basically asked Willett where he stood on a topic that divides the members of the conservative legal movement.

Initially, Willett tried a little side-step in his answer. "It is exceedingly rare that a case of constitutional first impression ever lands on a court's doorstep," he replied.

But Kennedy would not be put off so easily. "I think those cases are not un-rare at all," he retorted. "I mean, litigants all the time assert a constitutional right. And all I'm saying is, to have heightened protection, you have to fit it into the slot of fundamental right. I'm just asking you how in a case of first impression you would make that decision."

This time Willett gave a more direct response. "Certainly, you begin with the text and the structure and the history of the Constitution," he said.

Unfortunately, the Kennedy-Willett exchange ended there due to time constraints. The bigger question lurking in the background about unwritten rights remained unaddressed. Had any of the Democrats bothered to follow up on it, instead of just prattling on about Twitter, Willett might have gotten more specific. But that sort of substantive constitutional conversation was not to be.

If Wednesday's hearing represents the Democrats' best effort at casting doubt on his nomination, Don Willett has nothing to worry about from that side of the aisle.

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  1. Senators using a public hearing as an excuse to signal to their base?

    1. See this face? This is my shocked face.

  2. Why are you attacking Democrats? The guy made a joke comparing gay marriage to marrying bacon. That’s hate speech and doesn’t belong on the bench.

    We also need more Democrats to be questioning the religious beliefs of these judicial nominees. Religious tests are libertarian when religious beliefs are hate speech.

    1. Good solid B.

      1. B+ if John responds to it

    2. “The guy made a joke comparing gay marriage to marrying bacon.”

      No Haram, no foul.

      1. The Democrats chose a strange halal to die on.

        1. “The shareef don’t like it
          He thinks it’s not kosher”

          1. You Mecca me so angry.

  3. So… Al Franken’s contention is that Willett actually believed A-Rod was playing for a high school girls’ softball team? I thought Stuart Smalley was a character, but i guess not.

    1. Listen, when Al Franken talks jokes that aren’t funny, he knows what he is talking about.

      1. When Franken as a child told people he wanted to be a comedian, everyone laughed. Well, nobodies laughing now.

        1. Actually, Franken as a comedian was never very funny. As a senator, he is totally hilarious.

          Remember learning in history class about a crazy Roman emperor who appointed his horse to be a senator? If the voters of Minnesota had elected a horse instead of Franken, it would have been a far better choice.

          1. ” If the voters of Minnesota had elected a horse instead of Franken, it would have been a far better choice.”

            If they had elected a pile of what came out of the back end of the horse it would also have been a far better choice.

            1. My Dem friends were saying nice things about Franken recently. These are intelligent people with PhDs.

              I took that as my cue to get another beer. Clearly they were well ahead of me.

  4. Substantive constitutional conversation from the party of ‘feelz’? I’ll be chuckling about that all day long.

    1. Their own “nuclear option” is being used against them, and they have no chance at blocking any reasonably qualified nominee, who hasn’t grabbed a tit or two [see below]. It’s about all they can do to “signal to their base” that they are trying.

  5. That is a pathetic attack. They couldn’t find anyone who knew him the 70’s to claim he grabbed a tit?

    1. Dude not everybody writes poetry.

    2. I’m sure they’re working on it.

    3. I refuse to believe that anyone who lived through the 1970s never grabbed a tit.

  6. The Democrats are consistently maintaining their rep as humorless scolds. It’s interesting to see how the “do your own thing, man” crowd has evolved.

    1. If he had said you have a right to marry tofu, it would all be good.

  7. Well we wouldn’t want any politicians beclowning themselves in this dignified era.

    1. Tell us how terrible whataboutism is again?

  8. Senator Franken was just accused of sexual assault and there is a photo showing him making a crude joke at the expense of his alleged victim. I wonder if he gets that joke?

    LOL

    1. Yeah-I just saw the picture and it’s pretty clearly a lame and juvenile gag (I make no judgements about the other accusations against him). Still petards and hoisting and all that-maybe his eventual harassment case will appear before Judge Willett’s court on appeal somehow and Al can explain the joke to the judge. That would definitely be good for some LULZ.

  9. Senator Franken was just accused of sexual assault and there is a photo showing him making a crude joke at the expense of his alleged victim. I wonder if he gets that joke?

    LOL

  10. If Trump does absolutely nothing for the next three years, nominating Justice Willett will still get an A++ with a gold star on top.

    Willett is more of a real libertarian in his pinky finger than everyone that Block Insane Yo Mofo Mofo Mufaletta Momma appointeed all their entire bodies combined together.

    1. And, as I said before, he shitposts on Twitter with Iowahawk.

      We need him in the higher courts so that he can make rulings until it is only legal for Iowahawk to be God-President.

    2. Block Insane Yo Mofo Mofo Mufaletta Momma

      Beautiful. Never change, Simple Mikey.


  11. One particularly low point came when Sen. Al Franken (D-Minn.), a former professional comedian, repeatedly insisted that one of Willett’s obvious twitter jokes was not actually a joke.

    Honestly, do we expect a Senator to recognize a reasonable question to ask? Especially an ex-comedian that is widely recognized as a partisan hack?

    Would Franken even know what to say to someone that’s been a life-long Judge, other than take a quick gander through their twit feed to look for something he vaguely understands? Franken is just admitting that the only things he really cares about, or understands, are literally things that don’t matter whatsoever.

  12. I hate this talk of the Constitution being about “rights”. It’s more properly understood to be about powers. Once you start thinking only in terms of “rights”, and whether they are protected or not, you go down a bad path that empowers the government.

    Of course, this line of thinking came about because the 9th and 10th Amendments have never been taken seriously and now are a dead letter.

    It should be simple. Is a right protected? The 9th automatically gives the presumption that it is. Then, the only question is, is the government empowered to act in this area? If not, then the right is protected simply due to the fact that the government may not act where it hasn’t been empowered, as the 10th says.

    Bork’s reasoning is precisely the opposite of what the founders intended. And it’s actually very common to think that way. My mind boggles.

    1. You can’t read the 9th Amendment and then conclude that Bork was anything but a twat.

  13. “Some rights, such as those spelled out in the Bill of Rights, are deemed to be “fundamental” and are therefore given strenuous judicial protection”

    Uh no, not exactly.

    Only SOME of the rights spelled out in the Bill of Rights have been deemed “fundamental” based on nothing more than the personal preferences of judges who dreamed up that idea. The 2nd Amendment right to keep and bear arms and 5th Amendment private property rights are both spelled out in the Constitution and are stomped all over in ways that freedom of speech or religion would never be.

  14. Had any of the Democrats bothered to follow up on it, instead of just prattling on about Twitter, Willett might have gotten more specific.

    Throwing hissy fits over shit people say on Twitter is way more important than actually examining a person’s policy preferences. If we’ve learned anything from the Dem’s daily freakouts over Trump’s tweets it’s this.

  15. One particularly low point came when Sen. Al Franken (D-Minn.), a former professional comedian, repeatedly insisted that one of Willett’s obvious twitter jokes was not actually a joke

    “My father told me, ‘son, there are some things in life that just aren’t funny, and one of those things is Al Franken.'”

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