President Donald Trump hasn't exactly been in a hurry to fill the many vacancies on the federal bench since taking office in January, and that has been alarmingly apparent on the Fifth Circuit, where three seats on the bench have remained empty since before Trump took office and a fourth will officially become vacant next week when esteemed Judge E. Grady Jolly retires from the court.
The Fifth Circuit is a court composed of 17 active judges based in New Orleans, with a jurisdiction covering Texas, Louisiana and Mississippi. While there's no constitutional or statutory provision allocating the circuit seats on a state-by-state basis, there are certain seats that are generally held by judges from certain states in the circuit. In this case, there are currently two seats open that are not technically reserved for Texas but that have only ever been held by judges from Texas.
So Willett is now going to take one of the two Texas seats on the Fifth, but it was unclear right up until the announcement was made on Thursday that he would garner one of the seats on the bench.
Why? Well, mainly because it hadn't happened already.
Willett, a veteran of the George W. Bush administration and the Texas attorney general’s office who was appointed to the Texas Supreme Court in 2005, came to national prominence during the 2016 presidential election. He was on the list of Republican-approved conservative candidates Trump pledged he would choose from if he won the election. (Arch-conservative Justice Antonin Scalia's seat had remained empty since his sudden death on February 2016, so the pledge to appoint a conservative judge to the court was a crucial one to get more mainstream Republicans to back Trump during his run.)
Of the 21 judges on that initial list, Willett got particular notice because of his many tweets criticizing and making fun of Trump, an unusual attribute in anyone that Trump is considering favoring for anything. Despite the jokes on Twitter, Willett, a well respected jurist who is hailed as a great legal mind on both sides of the aisle, then made it to one of the Supreme Court short lists before Trump ultimately selected Neil Gorsuch.
(There have been rumblings since then that during Willett's interview at the White House, Trump's questions about Willett's tweeting may, ironically enough, have knocked the state supreme court judge out of the running to take Scalia's seat.)
Anyway, once Willett was passed over for a spot on the Supreme Court, many thought that he would quickly be nominated for the Fifth. After all, Willett had already been vetted, is about as popular as a conservative judge can be in this divisive political climate and he was one of only a handful of state judges on Trump's short list. With so many federal vacancies, it seemed obvious that Trump would tap Willett for the circuit court gig.
But the nod didn't come.
It was unclear whether Trump actually supported Willett being promoted to the Fifth Circuit; at the same time it was quite obvious that Texas politicians did not have a consensus about who they wanted to put in the two Texas seats on the Fifth.
Senator Ted Cruz was in favor of Willett, but both Senator John Cornyn and Governor Greg Abbott favored other picks. The top politicians in a state aren't the deciders on who gets a nomination to a circuit court, per se, but presidents tend to defer to their preferences, so not having even majority support may have been part of the reason for the delay. And when it comes to the confirmation process, it's incredibly difficult for a nominee to be confirmed by the Senate Judiciary Committee if the senators from the nominee's home state don't submit blue slips signing off on the person. In fact, there were a number of candidates running in the horse race to snag a spot on the Fifth, and at times it's been remarkably unclear who, other than Cruz, was in Willett's corner.
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That, paired with the fact that Trump announced another round of appointments earlier this month and once again passed over filling any vacancies on the Fifth, made it appear Willett might never get the seat.
Until now, that is.
Cornyn has confirmed that Willett and lawyer Jim Ho, a former clerk for U.S. Supreme Court Justice Clarence Thomas, and who served as solicitor general for Texas after Ted Cruz before going into private practice, will be Trump's nominees for the Fifth.
Just imagine what Willett's Twitter is going to be like going forward. His posts will probably be just as funny and ethically unimpeachable as they have been up until now, but it's still something to look forward to.