TALP 45 | Fifth Circuit

 

Growing up in meager circumstances, Judge Don Willett never imagined he would serve as the Tweeter Laureate of Texas or, more notably, as a justice on the Texas Supreme Court and now on the Fifth Circuit Court of Appeals. Judge Willett credits his rise to the work ethic and sacrifices of his mother—a widow who worked long hours as a waitress to support him. Judge Willett applied that work ethic in both legal and policy jobs that put him on the path to the bench. In this week’s episode, Judge Willett talks with Todd Smith and Jody Sanders about his career path, his judicial approach, and even font choices. He also shares some of the most memorable experiences he has had in his varied and fruitful career.

Listen to the podcast here:

From the Texas Supreme Court to the Fifth Circuit | Judge Don Willett

We are ringing in the New Year in a very special way with a special guest Judge Don Willett from the Fifth Circuit Court of Appeals. Welcome to the show, Judge.

Thanks, guys. I’m honored to join you.

The folks who are familiar with Texas appellate practice will certainly know you. We do have people who are reading who are not from Texas. Let’s talk a little about your background and how you got to where you are now.

I’ve definitely had a roundabout in the uncommon zig-zag journey to my current job. I understand full well, I’m the beneficiary of a lot of divine happenstance and a lot of serendipity. I think because of that, it is what has driven me, spurred me to devote my life to public service just as a way to express gratitude for these improbable privileges and advantages I’ve been given. I was born in Dallas to an unwed teen mom. I’m born sickly and frail, frankly not expected to make it, at least not much beyond Christmas. I was adopted by my mom and dad, neither of whom finished high school. Both my mom and my dad had dropped out of high school to help support their families to work and try to provide. They nursed me back to health and my father then passed away when I was six years old. I was about to begin first grade.

My father was 40 and died of a heart attack or a series of heart attacks. My friends, hearing how young my father was when he passed away and they say, “Have you gotten checked out? How’s your health?” I’m adopted and I’m this biological, medical, now it’s a jurisprudential mystery, which makes it easy when I fill out medical forms. It saves a lot of time, but I don’t have the foggiest idea about my medical or biological background. He passed away at age 40. My mom was about the same age and she too did not finish high school. She was a waitress her whole life. She worked her heart out pouring coffee and serving people. She was a waitress for 55 years, mostly at the local truck stop along the interstate in Forney, Texas.

After my father died, we moved into this drafty double-wide trailer out in the country in Talty, Texas, which had a whopping population of 32 people. I joked that it was so small that our town’s square had only three sides to it. Our ZIP code began with the decimal. It was pretty tiny. I grew up surrounded by cotton and cattle out in the country and rode the rickety school bus to neighboring Forney, Texas, which had slightly more population. It was probably the nearest bigger small town. I was a Forney Jackrabbit, class of ’84. I grew up, again, out in the country, middle of nowhere with just my mom, my sister, and me. My mom’s the majestic hero of this story. She couldn’t help me a lot with academic stuff growing up but in terms of embodying these incredible virtues, these uncommon attributes of grit, tenacity, and fortitude, she was my exemplar.

I had my formal investiture on my former court, the Texas Supreme Court. I joined that court in August of ’05. We had the investiture on November 21st of that year. We chose that date on purpose because it was my mom’s 75th birthday. We wanted to pay a tribute to her, to this life of tenacity, sacrifice, and selflessness that she had given to my sister and me. She just didn’t want a lot of heroic moms to-do. She hunkered down and worked her heart out to support my sister, Donna, and myself. At that investiture ceremony, I wanted to pay special tribute to her. I did some research and I found a website that will estimate the number of miles that people walk every day in different occupations.

You can imagine a letter carrier, really high. A waitress, unbelievably high. I did my quick lawyer math and I thought, “Fifty-five years, but often working a couple of jobs, sometimes three in many weeks for seven days.” I was astonished when I got to the arithmetic bottom line of all that and discovered that my mom had worked for more than 50 years and had walked about 250,000 miles, which is hard to wrap our mortal noggins around. In Texas terms, imagine there’s a map of Texas behind me, put your finger in the corner of the panhandle and trace the border of the Lone Star State about 80, 85 times. Every working year of her life, she made a complete trip and a half around the Lone Star State.

I’d tell people, “It was cliché and sappy, I know, but every step she took brought this grateful son one step closer to this unfathomable gift. I have to do what I do with all these advantages I have.” She passed away a couple of years ago at age 87. Get this, after she spent 55 years waiting tables, she then became the clerk of the court for the Justice of the Peace in Forney, Texas in my little rink small town. I found her little plastic nameplate that said, “Doris Willett, Court Clerk.” I have it over here. I’ve got a snappy brass. It used to go on the door of my chambers downtown. I have her little plastic engraved court clerk desk plaque next to my Don R. Willett United States Circuit Judge brass plaque. I then found the oath that she took to be the court clerk for the JP in Forney. I was astonished when I came across it. I have her little oath of office as court clerk to the JP. I have it taped to the back of my presidential commission for my federal circuit judgeship. She was a remarkable woman. I found also some old financial aid forms from college and her income tax returns. She was making $11,000, $12,000, $13,000 a year waiting tables. I owe her everything.

TALP 45 | Fifth Circuit

Fifth Circuit: Employment and labor law was real flesh and blood practice and the issues it dealt with were always provocative and interesting.

 

To come from those beginnings to where you are now, it’s quite incredible. I enjoy hearing you talk with such reverence about your mother and how she contributed to your success in life. No doubt it ingrained the work ethic in you. How do you not pick up a work ethic watching someone go through day in, day out working like that?

She never finished high school, but she had a PhD in grit and tenacity. She lived with a lot of exuberance and she loved a lot of extravagances. She was famously opinionated and she was always caffeinated. She was sweet with a side of zest. She’s remarkable. She was a force of nature and she was a category five combination of sass and dynamism.

You mentioned how the blessings that you’ve received propelled you or instigated in you a desire to participate in public service. You’ve obviously done that in your career. You mentioned your career at the Texas Supreme Court, which I’m sure we’ll get into in some more detail, as well as your current bench. Before you went on the Supreme Court, you had quite a career in public service as well. You worked in the governor’s office and you’ve had some other posts in public service as well.

I came out of law school in ’92 and then I came to Austin to clerk on the court I now serve on. I was a clerk to Jerre S. Williams who I believe was the last Carter appointee to the circuit. Judge Williams, before that, was a law professor at UT for about 30 years. Widely universally respected, everybody loved Judge Williams. Unfortunately, his health had taken a negative turn, he was sick and fairly frail during my clerkship. He ended up passing away shortly after I wrapped up my clerkship in ’93. I had law firm offers when I did my clerkship in Dallas, but I didn’t know where I wanted to be. I was fairly directionless. I did a joint degree program at Duke. I got my Law degree and I got a graduate Political Science degree.

That Poli Sci degree soaked up a lot of my elective hours. When I graduated, I had no idea what type of law I wanted to practice. Clerking was a beneficial, useful buffet almost for me and everything we handled at the circuit was in the context of litigation. It was a useful gap year, but it helped me get my head on straight and sharpened some things for me. I ended up staying in Austin and I went to Haynes and Boone, which had an outpost here. I practiced employment and labor law, which I thought was interesting because it wasn’t company A suing company B over some deal that blew up. It was a real flesh and blood practice. The issues and the facts were always so provocative and interesting.

You’ll find words in the index of an Employment Law of Deposition that you often just won’t find in a commercial litigation context. The psychological layers run very deep and it’s a key part of people’s identity. You’ll meet somebody new and you’re like, “What’s your name? What do you do? How do you spend your time?” It’s a real key ingredient to how people see themselves. It was a fascinating field of law. The firm was good about indulging my off-the-clock interest in government and public policy. You don’t have a lot of spare time as a young lawyer at a large revenue-generating law firm, but they were good about indulging my interest in government.

Off the clock, I did some think tank writing and research. I did a lot of pro bono litigation for nonprofit legal foundations, and frankly, it was all of that off the clock non-billable extracurricular work that put me onto the radar of Governor Bush’s office. I’d been at the firm for maybe 2.5 years and then got this unexpected invitation to come to join Governor Bush’s staff as a utility infielder. Everybody in the policy shop where I was, we were the governor’s think tank, his idea factory. Everybody had their own narrow specialty except for me. I got to be more of a generalist and I feel like the hot grounder du jour.

I could be working on an education issue at 8:00 or a criminal justice matter at 8:30 and economic development matter at 8:45. It was a new adventure from email to email. I worked for Governor Bush for about four years in the governor’s office then went to the 2000 campaign and did my tour of duty there. I went to Florida for a spell in their great recount war of 2000 and then off to DC and worked on the transition. I worked in the White House for a year. I went over to the Justice Department and was the deputy in the Office of Legal Policy, which is the administration’s legal think tank.

All the civil and criminal justice policy initiatives are born and nurtured within OLP. It is the epicenter for this Armageddon-scale judicial selection and confirmation battles. I worked there a lot on interviewing potential federal judges, both district court and appellate court level, and helping shepherd these limelight nominees through this toxic and vile process. My wife and I got married in 2000 about three weeks before Election Day. She worked in the White House for both years, helping to run the White House Fellows program. She traveled all over the world as part of that. A few months before 9/11, she was leading this White House delegation through Pakistan and India.

TALP 45 | Fifth Circuit

Fifth Circuit: The thrill and joy that go with working in the Texas Supreme Court can never be overstated.

 

At that point, the regional terrorist Osama bin Laden was tracking the movements of her White House group. That was only 3 or 4 months before 9/11. We were there during historic times. We were there on that horrific day. We saw a lot of history there during our time in DC. We got to go to Tee Ball games on the South Lawn of the White House. We got to sit in the president’s box at the Kennedy Center, which was awesome, fireworks on the 4th of July. We were not going to come down with Potomac fever. We were not going to become enchanted by all the trappings of DC life.

We were there, we served about a two-year hitch and I had a long-term judicial aspiration that was not getting remotely propelled further along, the longer that you lingered in Washington. We were a part of the early wave of people returning home to Texas. We got back in early ’03. Greg Abbott was then newly elected as Attorney General and he was assembling his executive team. I came back as his Chief Legal Counsel. I was the Deputy Attorney General for Legal Counsel. I was at this never dull intersection of law, policy, politics and at his elbow for every major legal issue confronting the state. That’s the most fun, nonjudicial legal job I’ve ever had. I was there for about 2.5 years. Governor Perry appointed me to replace Priscilla Owen on the Supreme Court and I was there for about 12.5 years until I joined my current court. I’ve worn a lot of legal hats, but I think judging fits me best. I’m metabolically engineered, sort of hardwired for this cloistered, contemplated, monastic and nerdy life of appellate judging.

What are some of your favorite memories or cases at the Supreme Court? You were one of the longest-serving judges in recent memory at the Supreme Court.

You guys know this, but from ’01 to ’05, there were ten new faces on that court. That revolving door was going at warp-speed and people would lose an election and they would go into private life. They would run for some other non-judicial elected office. Incredible turnover from ’01 to ’05. I was the 10th of 10 when I joined in August of ’05 and then the court entered this four-year period of continuity and stability. I then became the longest-serving number nine in Supreme Court history. I was the court caboose longer than anybody had been chairing the heroic coffee committee and all that. Judge Brown bested my record by a few months but that was a ball.

I have such a fondness and affection for that court, which is the intellectually muscular high court, perhaps the leading such court in the country in my book. I know, for the clerks who were there, the clerks attended a conference at my former court. They sit around the perimeter and have this unmatched front row seat into judicial decision-making. They’re there with this bird’s-eye view. Sometimes they’ll muster the courage to stand up and chime in or maybe they’re called on by their judge or by another judge on the court to chime in which is initially petrifying for them. I loved my service on my former court and thought I would be a lifer there until the stars aligned for my service here. A couple of favorite cases, there’s one that would be under the infamy category.

As you both know, your readers may not know, but at my former court, authorship is purely random. It is completely literally the luck of the draw. About 1, 2, or 3 months before oral argument, our den mother at the court, Nadine, she will fan out the names of these cases that she has written on these 3×5 blue index cards. She’ll write the names, one case per card, and then she’ll span them out like a magician playing a card trick. Beginning with the junior-most member of the court, you pick a card and you use the Force, and some days the Force is with you and other days not. One day the Force was not with me. I picked the card in Strickland v. Medlen, which is our infamous dog case.

It’s about what damages can that grieving, bereaved dog owner recover when their pet is accidentally destroyed? In this case, poor Avery was negligently euthanized at the shelter. Avery’s heartbroken family was suing the shelter and a shelter employee for wrongful death-type damages for emotional attachment, pain and suffering, loss of companionship. That stuff you would seek if a spouse or a child had passed away. The decision was nine to nothing but I drew the card on Strickland v. Medlen and had to write the opinion, which I wrote myself. For better or worse, every word of that opinion I wrote from scratch. It went through a conference one time and it was unanimously agreed to. I began writing it before the argument, because the draw happens pre-argument as well, which surprises a lot of people.

As an advocate, you’re there at the podium. Somebody up there has already been assigned authorship of your opinion. I began writing that one pre-argument because I had a pretty strong suspicion of how the court was likely to come out. Also, that case was unique. Your readers might appreciate this. The value of amicus briefs in that case was special. We got a lot of Amicus briefs and from a lot of animal-loving pet welfare organizations. As a matter of their love and compassion for our furry friends, you would think would lead them to favor greater recovery for loss of companionship and sentimental value. They urged us to come out exactly the way we did.

We had, for example, a group of veterinarians. We had the American Kennel Club, we had the Cat Fanciers organization. They all urged us to come out exactly the way we did and not allow that recovery for emotional damages. The reason is, for example, the veterinarian said, “We’re going to have to then insure against these high-dollar judgments. We’re going to have to pass along the cost of that higher malpractice coverage to our clients. If it used to cost this much to have your pet examined, it may now cost this much. If the cost of pet care spikes, we’ll have to pass it on. The net result of that, it may cause animals more harm than good because if a pet is now injured and if it costs a lot more to have that pet examined, owners may be more apt to maybe abandon a pet, sadly, and it may be cheaper to put a pet down rather than have it treated. If you’re backing out of your driveway, just think about your insurance rates, your homeowner’s rates. Your neighbor’s cat runs by you. You run over your neighbor’s cat and now you’re sued for a million-plus because that cat meant everything to your neighbor.” The value of amicus briefs, in that case, was beneficial. Helping the court to see beyond the litigants in front of us to see the society-wide ripple effects. It struck us as a quintessential policy judgment because Texans, we’re fond of all critters.

Authorship in the Texas Supreme Court is purely random. Some days the Force is with you and other days it’s not. Click To Tweet

In Tennessee, they’ve passed a statute. They had hearings, they crafted legislative language to limit those cases to domesticated dogs and cats. No boa constrictors, no gerbils, no tarantulas, none of that. They put a cap on it at $10,000. That struck me as the right way to do it because it seemed to be judicial policymaking for us to draw all these lines as if we were freewheeling, common law judges imposing our own personal sense of justice and fairness. Strickland v. Medlen and that one went viral internationally because it’s easy for people to relate to. My infamous eyebrow threading case and several others. It was a rollicking docket, a lot different than my current docket. Maybe we can get into differences between my former court and my current court, but I cannot overstate what a thrill it was to work on my former court. It was an absolute joy.

It’s funny you bring up the Strickland case because Justice Boyd was our first guest. When we asked him about memorable cases, he brought that case up because he had asked a question that got him some hate mail from cat lovers. He brought that up too.

I remember it well.

The lesson he gave on that was, you be careful what questions you ask at oral argument, because the way he asked his question, it gave off the impression wrongly to some people that he hated cats.

We were on opposite sides of the bench. As soon as I heard it, I thought, “He’s going to hear about that one later.”

It’s funny that you bring that one up, but also you mentioned Patel, the eyebrow threading case. We don’t talk cases all that much on this show. At least we haven’t, but that could change eventually. Those seem to be the two most discussed cases. This will be episode 45. It’s interesting that there’s a theme that’s come through the cases that have made the most impact and you wrote the majority opinion in Strickland and then that was concurrently quite an interesting case in and of itself.

Phil Johnson drew the card in Patel and drew the majority assignment, which was best for everybody. If I had drawn on it and written anything like my fire-breathing concurrence that I wrote, I might not have had the desire, or I’m going to have landed a bit differently as a majority than it did as a concurrence. In the grand scheme, it’s best that Phil Johnson drew that majority assignment. My book about Patel, like Strickland, is one that again, for better or for worse, I wrote every word of myself. Patel lingered at the court a long time. The petition was there for a long time and there’s some court composition I believe changed along the way.

We finally mustered four votes to grant the petition. Even then, I had no idea how it was going to turn out. I really didn’t. What’s interesting is, this is just in the weeds nerdy statistics matter, but that is the only case over the previous I don’t know how many years were in a divided judgment where Paul Green and Nathan Hecht were on different sides. I forget going back how many years, but if there was a divided judgment at my former court, Justice Hecht and Justice Green was always together, but Patel is the one and the only example of them parting company.

You mentioned writing both of those yourself. You told me in another setting once that you knew that at least one of those cases was going to be a major part of your judicial legacy. You didn’t want to leave the drafting to your law clerk or staff attorney.

TALP 45 | Fifth Circuit

Fifth Circuit: It is best to hire clerks who have the intellectual horsepower to help you generate the bread and butter work that you do at a high level of legal sophistication.

 

That’s true. I usually try to give them first crack at drafting a majority opinion, and then I’d take it and revise the heck out of it. Often the final product may not bear much resemblance to what they initially gave me. Sometimes it does but I’ve got this irresistible inclination to fuss with and revise. I knew that both Strickland v. Medlen, the dog case, and Patel, the eyebrow threading case, I knew would be part of my judicial legacy. I wanted to speak in my own voice and put it the way I wanted to put it. On my former court, there were eight other very smart, willful, opinionated people that you had to persuade.

I thought it was best for me from scratch from a blank screen on my laptop to just write it all myself the way I wanted to write it. There are others, especially separate writings. I’m more apt to just write myself when you’re speaking in your own voice and not on behalf of colleagues. You have a bit more leash and stylistic license to put things the way you want to put them without having to play, Mother, May I with a lot of other folks. Separate writings, I’m more apt to just write on my own from scratch. On majority, I try to get my clerks to put together a sharp, thoughtful draft that they would be satisfied going out.

I don’t want to see it unless they are incredibly satisfied with the quality of that product that it’s the most penetrating analysis they can muster. In my chamber, every clerk carefully kicks the tires on every draft of all their code clerks before I see it. I don’t want to see it until it’s gone through that rigorous review. The talent level here in my chambers is unreal. These are exceptional lawyers and very few of mine come straight from law school. Of my current four, the next four I have hired, the next four I’ve already hired and the two that I’ve hired beyond that.

Of those fourteen, only one of them is coming straight from law school and all the rest have some seasoning, some other legal experience either maybe in private law practice, maybe a federal district court clerkship. Maybe a Texas Supreme Court clerkship, maybe a fellowship in the Solicitor General’s Office, the Coleman Fellowship or another SGs office, or some combination of all of those. By the time they show up on my doorstep, they’ve got a little more seasoning and they’re a little bit better-rounded. Their legal work is a little sharper and refined than coming here straight from school though. I have colleagues who will only hire people straight from school because maybe they don’t want them to be philosophically corrupted by the wide world or something.

They want them as a wet play dough that they can mold and shape but the talent level is unbelievable. These are exceptional young lawyers who take a year out and come and work alongside me. I’m proud of the day job work I do and the written stuff that I work hard at, but my law clerks are my proudest judicial legacy and it’s fun to follow them over the future generations. Clerking for me is not a one and done proposition. It is lifelong of mentorship and friendship. I hire people that I want to root for. For me, it’s not a matter of hiring, “Unfinished number one. Who has the most platinum resume?” They all have platinum resumes. Their grades, the objective stuff is incredibly impressive, but there are a lot of those. For me, clerk selection is more art than science. I want to hire people certainly who have the intellectual horsepower to do the work to help me generate the bread and butter work that we do at a high level of legal sophistication. Also, I want to hire people who I’m going to enjoy working closely alongside who I can cheer and root for over the course of their career.

It is helpful to hear how you use your clerks. Even now, we’ve had the privilege of hearing from some of your colleagues on both courts about that. That’s always useful information to have. I do want to get into comparing and contrasting the Supreme Court and the Fifth Circuit, but what can you tell us about your transition to the Fifth Circuit? You mentioned being an OLP and being on that end of the process. It sounds like you got to see it from the nominee side, which I’m sure was extremely interesting, but probably cloistered.

Interesting is a G-rated word for that. It is interesting because I interviewed and helped select a lot of folks that, once I got onto the circuit, I would review their work or serve alongside them. I knew full well having had that front row vantage point working within the justice department, interviewing a lot of prospective judges, and helping shepherd them through the gauntlet, I knew what to expect. I knew it was a hurly-burly toxic and odious process. I told my wife that when all this began, “This is not a process to be enjoyed. It’s a process to be endured. You just curl up and endure the flogging and hope that you come out safely on the other side.”

One beneficial aspect of my zigzag professional background working in different branches of government on the state and federal level, it equipped me. It helped me understand that “I know judging, I know policymaking and I know the difference and that judging according to the rule of law is a sacred trust.” Moving from my former court to my current court, my title, it’s changed from justice to judge, but my task hasn’t and my judicial toolkit is the same. It’s fundamentally a job about language, about reading, researching and writing.

I’m always trying to refine and sharpen my judicial skillset. I went back a few years ago and got an LLM, a graduate Law degree in Judicial Studies at Duke where I’d gone to law school ages ago. Just because I’ve got this insatiable appetite for learning and want to always sharpen and refine how I do what I do to up my game. I’ve been a lawyer now for a little more than half my life. I’ve been a judge now for a little more than half my lawyer life, which is hard to imagine. Now, I’m ending my career by returning to the court where I began my career many years ago. Initially, I was seated right next door to the office where I clerked. I remember walking in there one day and it was like I’d stepped into a time machine and here I was many years later, back where I began. It’s an indescribable privilege to do what I do.

Clerking is not a one and done proposition. It is a lifelong relationship of mentoring and friendship. Click To Tweet

What are some differences in your role now on the Fifth Circuit versus when you’re on the Texas Supreme Court?

They are abundant. Certainly, I don’t have to run for office anymore. Parts of that I miss. I do. I have not cracked the code on the perfect judicial selection process. I’ve gotten very up close and personal with all the drawbacks to the way that we do it in Texas. I’m intimately acquainted with all the negative aspects of it, but I loved the meeting people part. I love the interpersonal part. I love the civic education part of it, acquainting people with the indispensable work of the courts and demystifying and humanizing that inscrutable branch of government. I do not miss this part. For your readers, I’m holding out my hand. I don’t miss the money-raising part at all. I was good at it, but I didn’t enjoy it. It’s very inelegant, a little crass, and undignified. I’m glad to have all that in my rearview mirror.

As a down-ballot obscure judicial character politically, you’re along for the ride and there’s not a lot you can do to buck the prevailing political mood or current. In Texas, you run on a partisan ballot and if your party is having an up year, then you’re in good shape. If they’re not, then they’re onto you, but you’re along for the ride and you can be a flawless candidate running a flawless campaign and wind up a loser if your party is not having a good year. The opposite is true too. You can be a lousy candidate, unqualified, inept, run a loony campaign, and find yourself victorious.

If your party is having an up year, a lot of voters, they go into the booth and it’s party-specific or it’s eeny, meeny, miny, moe, and they get to the judges. I’m glad that I’m no longer in a position where my own professional fate and future is tethered, tied, and dependent on the prevailing political mood or current. The election stuff is totally behind me, which I’m glad for. I miss my discretionary docket. I miss picking and choosing. I miss deciding what I want to decide. The volume and the velocity at my current court are next level. They are extraordinary. The conveyor belt never stops. It is truly like Lucy and Ethel in the chocolate factory. It has never ended. It is relentless. I miss also being the final word.

My former court, we were a court of last resort. Every case we heard as an en banc court, which gave a satisfying measure of finale and conclusiveness to it. You sat with the same eight familiar faces on every case and you all office down the hall from each other, you see each other a lot. In my current court, I sit with two different colleagues every sitting, every month, but we’re geographically scattered and were ideologically a little more scattered. The philosophical spectrum at my current court is a lot wider than at my former court. Every three-judge panel has some distinctive flavor and personality.

The way cases are divvied up is a lot different here. The presiding judge on the panel will assign authorship at the end of that sitting, as opposed to that egalitarian luck of the draw system we had at my former court. Maybe a little more isolated and cloistered here than at my former job. Most days I just see the other five people that I work with and nobody else. The makeup of the docket is radically different. My former court was, as you and your readers know, a civil-only court. The makeup of the docket was a lot different, maybe a smidgen more criminal than civil. We still get our state law eerie guest cases, which are fun. That docket makeup and was a lot different and it’s fun too. They sink my teeth into some meaty, weighty, federal questions. Over the years. I’d reviewed a lot of insurance policies and a lot of oil and gas contracts. Those cases are important, inconsequential, and fun. It’s fun and fresh to sink my teeth into a new batch of weighty federal questions. It’s been exhausting, but also exhilarating.

Did you have to get a Louisiana law dictionary to decode some of the stuff that comes up in those cases?

Those are different vocabulary, for sure.

Prescription and what else?

TALP 45 | Fifth Circuit

Fifth Circuit: You can be a lousy candidate, unqualified, inept, run a loony campaign, and still find yourself victorious if your party is having an up year.

 

The terminology.

You also do have the unique ability and, in appropriate cases, to essentially refer questions back to your former colleagues. I’ve seen one such case in the news with let’s say an example of a witty Don Willet footnote. The words were, “No pressure.”

When I got to my former court because of all that turnover, we talked about ten new faces in five years, there was an enormous backlog at the court, which you all may remember. The turnover contributed to that backlog because people would leave the court and all their cases would get reassigned or divvied up among their remaining colleagues and then somebody else would leave the court. When I got to the court, I don’t remember the number, but there were several dozen, maybe as many as 70 or so cases that had been held over from not only from the previous term but in many cases maybe even the previous term.

There was a rule at my court at that point where if you were a tardy on circulating a certain number of drafts, if more than X number of drafts were untimely or tardy, you couldn’t draw any more new cases and you were in the box, as they say. When I got to the court, I had more than a few colleagues who were in the box. I’m brand new at the court. Judge Ellen, bless her, had taken all of her staff with her to the Fifth Circuit. I began totally solo and on my own, not a single support person at all. I walked into my office on day one. It was this empty, largely furniture-less, echo-filled office.

I had to hire my staff brick by brick, person by person. I’m drawing, I’m being assigned roughly a third of all the cases at the court because a bunch of my colleagues are in the box and unable to draw new cases, given the backlog. I’m also the only one on the court who has a contested election. I had a contested primary looming in March and I was appointed to the court in late August. I’ve got a primary in the near term. I have no staff support and in the meanwhile, I’m drawing like a third of all the new appendant assignments at the court. It was a perfect storm.

I’m sure my former colleagues are tired of me bellyaching about this, but it’s an enormous source of pride that we were never late on anything in my 12.5 years on my former court. The Willett chambers was never a day late on circulating the best memo and opinion draft or whatever, but it was relentless from the early going. It was rough because you’re a candidate 24 hours a day, but you’re also trying to keep your head above water with your day job. On the campaign side, job one is keeping your job. It was a hotly contested primary, which I won by a gratuitous one-point margin. You had to work your tail off. It’s not for the faint-hearted and you had to tackle it with gusto, but I also wanted to be dutiful and conscientious in my day job and produce high-quality timely work. Those were the days.

It would be malpractice on our part if we didn’t ask you a little bit about Twitter because a lot of our readers know you well from Twitter. Can you tell us how you got into that? You were one of the first judicial adopters of getting on Twitter.

I began using it as judicial communication, a political communications tool. Judges are elected in 39 or so states including the Lone Star State, but Americans increasingly consume information online. Social media, I thought, was a fruitful way for the judiciary to engage citizens. When I first ran for the court in ’06, social media was maybe not completely non-existent, but nowhere near as ubiquitous as it is now. By the time I ran for reelection in 2012, it was a lot more prevalent and pervasive throughout the political world. As Texas Supreme Court justice, you got to hopscotch across 254 counties trying to tattoo your name onto the noggin of millions of voters.

You got to find creative ways to raise visibility and boost awareness. Twitter and Facebook and all that seemed to be low cost but potentially high yield ways to remove distance and also rally the support of key influencers and supporters, opinion leaders. Things ricochet in potentially fruitful ways online. Especially if you have a contested primary, which I did in both of my elections, if you can win the hearts and minds of key influencers and opinion leaders who in turn command vast, large follower ships, then it is political malpractice not to engage people smartly via social media. It began as a political communications tool over time.

Social media can be a fruitful way for the judiciary to engage citizens. Click To Tweet

It became my primary news feed and the best way for me to stay abreast of all the warp speed happenings in the world. It’s to enjoy the musings of smart, fascinating people from across the spectrum. For me, Twitter’s a neat one-stop compilation of smart, incisive viewpoints on every imaginable topic from a riveting cross-section of people. For a while, I was the most avid social-media-using judge in America, which I joke is like being the tallest munchkin in Oz or the most popular kid in chess club or whatever. It’s a low bar, like subterranean low. People were genuinely amazed that a fuddy-duddy nerdy judge can be somewhat ordinary, somewhat engaging, somewhat approachable.

My geekery is on an uber elite level. It’s rare for a judge to step out from behind the bench, demystify and humanize things. We do inhabit this age of staggering civic illiteracy. I also thought it was a neat way to acquaint people with the judiciary, with the work of the courts and try to boost our collective national civic side cue. I miss it a lot. It did require a lot of care and feeding, a lot of energy and I’m glad it’s a burden lifted not to have to devote energy and attention to it. I’m still on. I’m still working. It’s still how I consume information.

I accidentally retweeted something and I live in a perpetual terror that I’m going to make a stray swipe with a finger, like a careless finger grazing my screen. Sure enough and out of all the people I could have accidentally retweeted, it was so appropriate. I retweeted Raffi, the Dean of Appellate Twitter. Raffi had been giving people tips on Zoom oral argument. I was reading it through his thread and I accidentally along the way wound up retweeting it. All these notifications are popping up, “He’s back.” I’m like, “What did I do?” I get on my phone and I find out that I’d retweeted Raffi and I undid it. My heart just skipped a beat. It was momentarily terrifying.

I think you’re underselling yourself just a little, Judge. First of all, you’re not the only person on Twitter with the title. You mentioned Raffi being the Dean of Appellate Twitter, but you are the official or at one point were the official Twitter Laureate of Texas, which came by, if I recall, legislative proclamation. For a judge who’s no longer active on Twitter, I just checked in and your follower count is up to 96,000. I was thinking back in the day when you were active, it was about 25,000. It seems like your follower numbers have increased.

My high water mark was around 120,000 or 125,000. When my nomination happened, I was instructed not to delete my account or any of that stuff. Some people who go into federal office, they totally scrapped their account. By Jeff Brown’s account, it’s gone. Lost to the mist of time, but mine is still up there. It’s a historical archive, for better or worse. Once the nomination happened, I went dark. You may not remember this, but then after confirmation happened, but before I took my federal oath, there was about a 3 or 4-week window. I was out of the danger zone. I was confirmed, but I hadn’t taken my federal oath yet. I returned to Twitter for a final three-week little victory lap or last hurrah.

I still see my tweets retweeted sometimes. There are people who have a Timehop type feature that’ll show what I tweeted on that day, a few years ago. I’ll still see stuff retweeted and see a weird unexplainable burst of followers that appears out of the blue. My high water mark was 120,000, 125,000, and every day that I’m inactive, every day that I’m dormant, I just hemorrhage followers. I probably lose 50 or so followers a day. It is funny though, you mentioned the certified question case in my footnote, no pressure on my former colleagues. After Judge Owen left my former court and went to the circuit, people noted an uptick in the number of certified questions that were coming back to the Supreme Court. This is maybe the 2nd or 3rd one that I voted to send to my former court, but people were making jovial fun at the footnote that I was trying to find some outlet for my pent up, itchy Twitter fingers.

The opinion did get some traction. They’re writing to get some traction on Twitter. You’re indirectly out there.

I did want to commend my former colleagues. There was that window when the backlog had existed and the court, over the years, diligently and dutifully chipped away at the backlog. For several years running, they’ve decided every argued case by the end of the term and to their immense credit. They’ve been very conscientious, burned a lot of midnight oil, and worked hard to achieve that. I thought they deserved a well-earned little commendation.

You’ve been very gracious with your time, Judge. We appreciate you coming on the show. We’re so happy to have you. Before we go, though, we’d like to ask each one of our guests to offer a tip or a war story at the conclusion of the episode, does something come to mind beyond some of the things that you’ve talked about? We’ve had 1 or 2 war stories in here, but maybe a good practice tip for the Fifth Circuit?

TALP 45 | Fifth Circuit

Fifth Circuit: If you can win the hearts and minds of key influencers and opinion leaders who in turn command really vast followings, then it really is political malpractice not to engage people smartly via social media.

 

There are a lot of great tips out there in terms of Zoom oral arguments. I don’t want to rehash them. Raffi had some great ones. There are a lot of articles out there about how to make the most of a virtual oral argument. I don’t want to rehash that stuff. One war story, and I won’t go into depth, but as you no doubt know, as your readers have noticed, there’s a new sheriff in town at the Fifth Circuit. We have our typography template. Soon after becoming chief judge, Chief Judge Owen appointed a five-member committee on typography and style to take a fresh look at the layout of our written opinions. It had been about a dozen years when the court last undertook that.

When I was on the court as a law clerk, we were using Courier, which is still used by the First Circuit. Courier gave way to Century Schoolbook about a dozen or so years later, give or take. That effort was led by Judge King at the time. A dozen or so years later we took a fresh look at it with our committee ably chaired by my dear friend, Judge Elrod. We opted for this proprietary font Equity, which is beautiful. It’s elegant, authoritative, and uniquely designed for legal writing and judicial writing. There are some stories I could tell about the internal zig-zag journey that our template overhaul took. People are, by and large, pleased with the fresh and maybe more sophisticated look of our staff.

Our work is handiwork that deserves to be showcased in a form as elegantly as possible. It’s worthy of craftsmanship. Substance matters most obviously in the rigor of the intellectual analysis, but style matters too. My work is too important and it should be showcased in the most sophisticated way possible. I wrote an article for The Advocate, which is the publication for the litigation section of the bar. If people can get online and maybe review that, it gives the story behind the story of the circuit’s adoption of our new typography template. We want our work to be substantively correct, but also stylistically elegant. We want the analysis to be watertight, but we want the style to be refined as well.

The only tip, I have, this may sound sappy or saccharin, but 2020 has packed a wallop on a lot of people professionally and personally. I’m sure we’re all familiar with friends or family who’ve endured a lot of sorrow and grief over the year. Their lives have been totally upended. We all know a lot of lawyers. Some are very satisfied and content with their professional lives, others less so. I know a lot of disenchanted lawyers. I hope that 2020 has been a time for all of us to reconnect, rejuvenate and recalibrate. I know for me, it was satisfying to open up my calendar and mark through trips, lectures, teaching assignments, and conferences. It was a burden lifted to exhale and know that I could slow my pace and catch my breath. I would urge everyone, me included, as things maybe return to a measure of normality in 2021, to resist the allure of getting back on that treadmill at warp speed and to lavish attention on those who matter most in our lives.

That’s a great reminder.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.

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About Judge Don Willett

TALP 45 | Fifth Circuit

Judge Don Willett is a former justice on the Texas Supreme Court. In 2015, the Texas House of Representatives named him Tweeter Laureate of Texas. Since 2018, he has sat on the United States Court of Appeals for the Fifth Circuit.

 

 

 

 

 

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