Don Willett Does Not Reflect the “Best of Texas"

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November 15, 2017
Don Willett
Photo by: Photo: Gage Skidmore

Lambda Legal continued standing up against Donald Trump’s long line of dangerous nominees to the federal bench, specifically around a Senate Judiciary Committee hearing this morning on the nomination of Don Willett to the U.S. Court of Appeals for the Fifth Circuit.

This hearing comes on the heels of a letter sent to the entire committee yesterday, organized by Lambda Legal with 26 other national, state, and local LGBT groups to oppose Willett’s nomination, citing his extreme anti-LGBT agenda and track record. In the letter, the groups also oppose to two other nominees to lifetime appointments on the federal bench: Stuart Kyle Duncan to the Fifth Circuit and Matthew Kacsmaryk to the U.S. District Court for the Northern District of Texas.

Sharon McGowan, Director of Strategy at Lambda Legal, said following today’s Senate Judiciary Committee hearing:

“Senator Cornyn opened today’s hearing by stating that Justice Don Willett reflects the ‘best of Texas.’  We beg to differ.  A careful examination of Justice Willett’s record demonstrates that he does not embody the values that most Texans would say that they support, chief among them being equality under the law and dignity for all people.  Justice Willett went to great lengths to avoid answering questions from both Democrats and Republicans on the Committee this morning, because he knows that an honest discussion of his deeply held views would reveal just how unfit he is for a lifetime appointment to the court of appeals.  But Justice Willett’s record speaks for itself, and his attempts to distance himself from that record should convince no one that Justice Willett is anyone other than who he has always been:  someone who holds LGBT people in contempt, someone who disregards precedent with which he does not agree, and someone who cannot be trusted to safeguard the constitutional rights of people who do not share his personal beliefs.

“But, this problem extends much further than Don Willett. This is about Jeff Mateer, Steven Grasz, Gregory Katsas, Mark Norris, Damien Schiff, Stephen Schwartz, Don Willett, Kyle Duncan, and Matthew Kacsmaryk and the many others who have all demonstrated their outright contempt for LGBT people. Confirming any one of them could cause serious damage to the safety and security of LGBT people in this country for decades. We did not send our Senators to Washington to be a rubber stamp for all of Donald Trump’s nominees. They must actually look at their records, and see how they are a part of the President’s larger unveiled and unapologetic attempt to turn back the clock on the rights that LGBT people have achieved, and to erase us from public life.

“Lambda Legal has been fighting for our families for over forty years, and the courts have been central to the progress of our community.  We must not allow our courts be poisoned in this way. It’s time that Senate Republicans and all those voting for these judges stop rubber stamping these nominees, without a care for the damage that everyone knows they are going to inflict on LGBT people and others.  It’s time that more of our Senators join us in this fight for what we all know is right.”

In the letter which was sent yesterday to the Senate Judiciary Committee to oppose the nominations of Willett, Duncan, and Kacsmaryk, the groups outlined the urgency for rejecting each of these specific nominees. They state:

“Our concern is not just about these nominees’ extremist views and willingness to gut landmark decisions that form the basis of all protection for LGBT people. Our concern goes further than that. These nominees have challenged LGBT peoples’ right to form families at all, and argued expressly that the families that they have formed are less legitimate than other families. These nominees have denied in some cases that LGBT people really exist. Their records reveal that they will be incapable of treating LGBT litigants fairly—no matter what body of law is at issue in the cases over which they may preside—because they do not acknowledge LGBT people as having a right to exist. These are not the kinds of judges that this country wants, needs or deserves.”

On Don Willett’s nomination to the U.S. Court of Appeals for the Fifth Circuit, the letter highlights his opinion denying that the Supreme Court’s ruling in Obergefell guarantees married same-sex couples equal employment benefits. The letter demonstrates his hateful record with the Texas Supreme Court decision he signed onto in Pidgeon v. Turner, which “argued that ‘Obergefell is not the end’ and cited other pending cases to deny benefits for the spouses of gay and lesbian public employees. In light of his proudly held antipathy toward the equal rights of LGBT people, it is an inescapable conclusion that LGBT people will not be able to obtain a fair hearing from him.”

In the letter, the groups point out their worries about his ability to be a fair and impartial judge, noting that he has “boasted about being the ‘most conservative justice’ on the Texas Supreme Court and has stated that ‘there is no ideological daylight to the right of me.’” His decisions on LGBT rights, women’s rights, and other important civil rights cases also prove his statement to be true and that his views are “fundamentally at odds with the principles of equality, liberty, justice and dignity under the law.”   

The groups note that while the other two nominees they are opposing, Stuart Kyle Duncan and Matthew Kacsmaryk, may not have made “glaringly inflammatory statements about LGBT people to the same degree that Mr. Jeff Mateer has (e.g., asserting that transgender children were evidence of ‘how Satan’s plan is working’), it is clear that they hold the same degree of animus toward the LGBT community.”

Specifically regarding Stuart Kyle Duncan’s nomination to the U.S. Court of Appeals for the Fifth Circuit, the letter highlights his numerous attacks on LGBT people and transgender Americans specifically in his defense of the North Carolina legislatures who passed the notorious transgender bathroom ban (HB2), and his defense of the school district that targeted Gavin Grimm, a transgender student.

Throughout his argument, he routinely peddled hate-mongering language about transgender people, including filing “expert declarations on behalf of the legislators that relied upon ‘junk science’ that described transgender people as delusional (arguing in essence, that transgender people don’t exist) and advocating that parents should discourage ‘transgender persistence.’” In another one of his briefs, Duncan “deployed offensive and baseless ‘gender fraud’ arguments, suggesting that schools were entitled to refuse to respect a student’s gender identity in order to ‘prevent athletes who were born male from opting onto female teams, obtaining competitive advantages and displacing girls and women’—a myth that has not materialized across hundreds of school districts with nondiscriminatory policies over many years.”

And, on Matthew Kacsmaryk’s nomination to the U.S. District Court for the Northern District of Texas, the letter points out that he “is an anti-LGBT activist whose history of targeting those who do not live according to his particular social and religious beliefs calls into doubt his ability to administer fair and impartial justice.”

Throughout his career, Kacsmaryk has routinely tried to advance anti-LGBT causes, including opposing nondiscrimination protections for LGBT people and defending public business owners in picking and choosing their customers. And, in his own writings, he depicted efforts to achieve LGBT civil rights as seeking “public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.” The groups that have signed onto this letter call for his nomination to be rejected as a nonstarter.