Joshua A. Douglas is a law professor at the University of Kentucky College of Law and co-editor of the book “Election Law Stories.”
Want to be a federal judge? You might have to account for your prior tweets.
At least that was the message from Democrats on the Senate Judiciary Committee when questioning Don Willett, a Texas Supreme Court justice and self-proclaimed “Tweeter Laureate of Texas,” for his appointment to the federal appellate court. Willett’s tweets are funny, pithy and often involve his kids or the virtues of civic duty. They were also the subject of intense questioning at Willett’s confirmation hearing.
We should not judge someone’s qualifications, or even their deep views on complex constitutional issues, based on statements made 140 characters (or now 280 characters) at a time. That sets a dangerous precedent, where qualified lawyers will be ever cautious for fear of having something thrown back at them years later.
If Willett is confirmed to the appeals court, I will likely disagree with him in a lot of cases. His opinions while on the Texas Supreme Court show him to be ideologically conservative, and I would prefer judges without that particular viewpoint. But his tweets have nothing to do with that fact.
To be sure, if someone made a truly egregious statement in public, on Twitter or otherwise, that should be fair game to probe more deeply whether the individual harbors views that might call into question the person’s qualifications or impartiality. Willett’s tweets are not even close to that level.
Scrolling through Willett’s Twitter feed reveals a plethora of dad jokes, amusing puns and civic-minded messages. His top “pinned” tweet is a series of images of the sun setting with a basketball hoop in the foreground, making it look like the sun is the ball going into the basket, along with Willett’s tweet, “God. Got. Game.” In September, he retweeted a video of Chicago Cubs shortstop Addison Russell knocking over a fan’s nachos by mistake and wrote, “If fan had sued Russell, fan would recover nothing. Under tortilla reform, you don't pay if it’s nacho fault.”
He often tweets prideful messages about his children, the “Wee Willetts.” And he commonly references important historical moments, such as on Sept. 22, when he tweeted: “OTD 1862 — President Lincoln issued the preliminary Emancipation Proclamation. ‘If my name ever goes into history it will be for his [sic] act.’ ”
So what caused so much concern for Senate Democrats?
There was a tweet obliquely referring to the Supreme Court’s consideration of the constitutionality of same-sex marriage, in which Willett posted a picture of bacon and wrote, “I could support recognizing a constitutional right to marry bacon.” A reasonable observer should not think that this tweet was championing an anti-same-sex marriage viewpoint.
In another tweet, referring to a Fox News report that “California’s transgender law allows male high schooler to make girls’ softball team,” Willett wrote, “Go away, A-Rod,” referring to retired professional baseball player Alex Rodriguez. Presumably, Willett was making fun of Rodriguez’s known steroid use. It’s hard to say, based on those few words, that Willett was making a statement about transgender individuals.
If these tweets suggest his views on same-sex marriage or the rights of transgender people, does his tweet about “tortilla reform” also tell us about his thoughts on tort law? Does his tweet about the Emancipation Proclamation give us meaningful insight into how he approaches cases involving racial justice?
The problem with probing Willett’s tweets so closely is the precedent it sets. Apparently, anyone who may wish to enter the federal judiciary must watch what they tweet for their entire careers. That may chill their online activity. This is different from a person’s formal writing, speeches or prior judicial opinions, which take a lot more time and thought and therefore tell us a lot more about what the person truly believes.
People post things to Twitter all the time without much foresight. Willett’s Twitter feed mainly educates the public about the role of a judge while providing amusing thoughts on a variety of topics. Do we really want to cut that off?
Senate Democrats should set a better example. To be sure, it is not as if Senate Republicans have been fairer in the judicial confirmation process, blocking scores of President Barack Obama’s nominees, including his Supreme Court pick, Merrick Garland. So perhaps the Democrats are simply taking shots where they can. But politics is ever-changing and, soon enough, Democrats will likely be in control and be able to choose their own nominees. Will they want Republicans combing through Twitter feeds as well, making a big deal out of something intended to be lighthearted?
Probing Willett’s actual views on these issues is perfectly acceptable. But doing so merely on the basis of a tweet — especially one intended as a joke — goes too far. Willett mostly tries to be funny and educational on his feed. We should encourage judges like him to continue doing so.
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