Some Resources About Judge Willett and the 20 Other Potential SCOTUS Nominees (with Updates)Andrew Hyman

I have started a resource page that provides some information about the 21 people in the running for the SCOTUS nomination, and hopefully will add more resources as time allows.  I would like to identify some red flags for originalists to be aware of, and will mention one of them now (more later).  

It appears that Justice Don Willett of the Texas Supreme Court is a fascinating fellow with an interesting background that includes riding rodeo along with a stint as a professional drummer.  He has also been instrumental in setting up a terrific online resource called Consourse that was discussed on this blog back in 2014.

Unfortunately (from my point of view), it appears that Judge Willett admires a doctrine that Justice Scalia abhorred, called substantive due process (or SDP, which was the stated rationale for Roe v. Wade among other cases).   In the 5-4 case of Patel v. Texas Department of Licensing and Regulation (2015), Justice Willett characterized non-enforcement of unenumerated rights as "absolute judicial deference to majority rule," which does indeed sound like a horrible sort of deference until you consider that the alternative may be absolute deference to judicial rule. Scholars still argue about whether SDP is consistent with originalism (I think not), and this dilemma calls to mind what Winston Churchill said in 1947: "Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…"

Past nominations by Republican presidents already suggest great caution (Justice Souter is often mentioned in this regard), so I urge caution and patience now in filling the current vacancy.  In any event, rumor has it that only two people are seriously still in the running for the Scalia slot: Judge William Pryor and Judge Diane Sykes.  I hope to blog about them in the future.

MICHAEL RAMSEY adds:  This is a great resource; thanks to Andrew for putting it together.  The last link identifies the rumor with the just-concluded Federalist Society convention, which I attended; I can confirm that Judges Pryor and Sykes seemed to be the leading candidates.  Josh Blackman's updated poll now has the top five as Pryor, Kethledge, Sykes, Cruz, Willett -- but with Pryor and Sykes leading in the most recent votes received.

Re Judge Willett, the fact that he endorses a version of substantive due process should not necessarily mark him as a nonoriginalist, as Andrew acknowledges, nor make him a risky pick (though it does put him at odds with Justice Scalia on this point).  I'm reminded of my late colleague Professor Bernard Siegan, who was nominated by President Reagan to the Ninth Circuit and sadly rejected by the Senate: him was an outstanding originalist and also one of the inspirations of the modern economic due process movement (and would have been a great judge, despite my disagreements with him).

FURTHER UPDATE: Josh Blackman points out, rightly, that Judge Willett's Patel decision was under the Texas state Constitution and carefully distinguished the federal Constitution.  (The two constitutional provisions are, however, more or less parallel).

FURTHER UPDATE FROM ANDREW HYMAN:  Of course, Justice Willett’s opinion in Patel was technically based upon the “due course of law” provision of the Texas Constitution, but that concurring opinion made very clear his support for substantive due process under the federal constitution.  This was noted by the dissents in that case, and is also crystal clear from his own opinion in Patel, which includes this:

There are competing visions, to put it mildly, of the role judges should play in policing the other branches, particularly when reviewing economic regulations. On one side is the Progressive left, joined by some conservatives, who favor absolute judicial deference to majority rule. Judge Robert Bork falls into this camp. A conservative luminary, Bork is heir to a Progressive luminary, Justice Holmes, who also espoused judicial minimalism. Both men believed the foremost principle of American government was not individual liberty but majoritarianism.

While Justice Willett distinguished the federal Constitution from the Texas one, he did not suggest that the two corresponding due process clauses should ideally be interpreted differently.  Quite the opposite.  Majoritarianism is one of the great defenses that has ever been devised to protect liberty, and majorities are responsible for creating the constitutional clauses that courts are sworn to obey.  A majority of the citizenry, or indeed a majority of legislators, will often defend liberty much more appropriately than would a majority of judges left to their own devices.  And when mistakes are inevitably made, legislation is much easier for the citizenry to correct than judicial edicts.