After a heated hearing, the U.S. Senate Judiciary Committee today approved the nominations of Texans James Ho and Don Willett to serve on the U.S. Court of Appeals for the Fifth Circuit.
On a party line 11-9 vote, the committee forwarded both Ho and Willett’s nominations for full senate consideration. If confirmed, Ho would be the first Asian-American to serve on the Fifth Circuit. Willett currently serves on the Texas Supreme Court and is known as the state’s “Tweeter Laureate” for his mastery of social media.
Their confirmation vote came after Democrats on the panel complained of the speed at which the committee was hearing circuit court nominations and the elimination of the blue-slip tradition, which allows home state senators to block nominees.
Sen. Dianne Feinstein, D-California, had requested that Ho’s nomination vote be delayed a week to review a memo he wrote while working for the U.S. Justice Department’s Office of Legal Counsel in 2001. The memo was cited in a footnote of the now-infamous torture memo authored by Judge Jay Bybee, who was then the assistant attorney general. Though Bybee’s memo is public, Ho’s is not.
In a hearing last month in which both Ho and Willett appeared before the committee, Ho said that the memo was the subject of attorney-client privilege and only the DOJ could release it. “We asked to review the memo to better understand his views. I’m disappointed my request was dismissed as a fishing expedition. It is not,” Feinstein said. “Senators are entitled to know about the nominees’ backgrounds before they are appointed to lifetime positions no matter how each member decides to vote, especially considering when the issue is torture.”
In the previous hearing, senators had focused most of their questions on Willett and his tweets.
Willett was pilloried by Democrats for his posts, including a a 2014 tweet in which he retweeted a story from Fox News about a 17-year-old transgender woman joining a girl’s softball team with the caption “Go away A-Rod,” referring to the former baseball player Alex Rodriguez.
Willett explained the tweets were meant to inject a “little bit of levity” into a divisive issue and that he did not mean to disparage anyone.
“I would note that some of the questions we had about some of the tweets, and one of them basically denigrating a young transgender woman, seemed to send a message that not all people are going to be welcome in his courtroom,” said Sen. Patrick Leahy, D-Vermont. “And that’s not a joke. That’s not a laughing matter. We had suggested to others too that this kind of a tweet and said he might want to take it down. Well, he still has it up there today.”
Texas Republican Sens. John Cornyn and Ted Cruz, who both serve on the committee, came to the defense of Ho and Willett during the hearing.
Cornyn noted that Ho previously served as his counsel on the Judiciary committee, was a former solicitor general of Texas and that both Ho and Willett were ranked well-qualified by the American Bar Association. Cornyn has been critical of the use of ABA rankings in the committee, while Democrats have favored them.
“If they think that is the gold standard and they’ve got the well-qualified rating of the American Bar Association, they can’t credibly claim that these gentlemen are disqualified or will come in and pursue an agenda that is separate and apart from their duties as members of the Fifth Circuit,” Cornyn said. “You could fill in a blank with the name because these are the same old talking points that we hear time and time again.’’
Cruz said it was unfortunate that Democrats on the committee were “slandering the good men and women who have been nominated to serve as judges.”
During the hearing, Cruz read a letter from Ron Kirk, a Democrat who served as U.S. Trade Representative under President Barack Obama, praising Ho’s nomination to the Fifth Circuit. Both Kirk and Ho serve as lawyers in the Dallas office of Gibson Dunn & Crutcher.
The letter noted that as a Democrat, Kirk rarely agreed with Cornyn of Cruz about anything, but he enthusiastically supported Ho’s nomination to the Fifth Circuit.
“There is no partner I have been more impressed with than Jim Ho,” Kirk wrote in the letter. “If there is one thing that my liberal and conservative colleagues agree on, it is that Jim Ho has it in his DNA to become a great judge.’’