Houston Chronicle Sunday

Don’t evaluate judge on tweets

- By Joshua A. Douglas

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, in which 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 his Twitter feed reveals a plethora of dad jokes, amusing puns and civicminde­d 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 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.

Douglas is a law professor at the University of Kentucky College of Law and co-editor of the book Election Law Stories. This essay first appeared in the Washington Post.

 ?? Associated Press ?? Texas Supreme Court Justice Don Willett calls himself “Tweeter Laureate of Texas.”
Associated Press Texas Supreme Court Justice Don Willett calls himself “Tweeter Laureate of Texas.”

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