How the Religious Right Helps Choose Federal Judges in Texas
The First Liberty Institute helped pick Trump nominees.
The panel meets in private, like a secret society. No one who serves on it is elected, and probably few Texans even know it exists. But it has an enormous influence on selecting the people President Trump nominates for lifetime appointments to the federal district and appellate courts, as well as U.S. attorneys. It is the Federal Judicial Evaluation Committee.
Texas entered 2017 with almost a dozen empty judicial seats, the most of any region in the country, and presidential nominees confirmed by the Senate serve until they choose to retire or die, so the committee harbors significant power that for years to come will shape federal court rulings on issues such as political gerrymandering, immigration enforcement, gay rights, and religious liberty.
The evaluation committee vets candidates for U.S. Senators John Cornyn and Ted Cruz, who then make recommendations to the White House. Although Cornyn and Cruz describe the Federal Judicial Evaluation Committee as bipartisan, it is composed primarily of Republican lawyers, so conflicts of interest abound. The panel also provides an ideological inside track for at least one conservative organization to get help appoint judges sympathetic to its religious liberty lawsuits. It meets in secret and is not subject to laws that require open meetings or public disclosure of records—the kind of government in the sunshine concepts that have helped prevent corruption and insider dealing for decades now.
On the purely professional level, the panel determines whether candidates for presidential appointments are qualified lawyers. On a political level, the committee gives cover to Cornyn and Cruz for nominees whose resumes are more partisan than professional.
In recent months, the committee has given its stamp of approval to Lieutenant Governor Dan Patrick’s son, Ryan, for appointment as U.S. attorney for the Southern District; Texas First Assistant Attorney General Jeff Mateer for a U.S. district court bench; and former Texas Solicitor General James Ho and current Texas Supreme Court Justice Don Willett to the Fifth Circuit Court of Appeals. Both Mateer and Ho have worked on lawsuits with the First Liberty Institute of Plano, which is involved in legal cases over prayerful invocations at government meetings, the display of Bible verses at public school football games, and an anti-discrimination ordinance used against an Oregon baker who refused to sell wedding cakes to same-sex couples.
For Ho and Mateer, such conflicts occurred because of their past association with the First Liberty Institute, whose president and CEO, Kelley Shackelford, is a member of the evaluation committee. So is Ho’s wife, Allyson, a Houston lawyer who has represented U.S. officials in federal court and worked with the First Liberty Institute on a federal lawsuit to defend a North Carolina commissioners’s court against a challenge to its use of prayer as an invocation at meetings.
James Ho worked as the lead attorney for the First Liberty Institute in the prominent case of the Kountze cheerleaders, in which students sought to create football banners containing Bible verses. Willett was among the unanimous Texas Supreme Court members to rule in favor of the cheerleaders—and First Liberty’s position on the issue: that the cheerleaders were making a private expression not subject to government intervention.
The most controversial of the nominees is Mateer, who once was the general counsel for the First Liberty Institute. Mateer is known for publicly denouncing marriages between same-sex couples and claiming “Satan’s plan is working” in reference to children identifying as transgender. Mateer served six years as the First Liberty general counsel. The American Bar Association ranked Mateer as “Qualified” to serve as a district judge, but not by a unanimous vote of its standing committee on the federal judiciary.
Vice News recently released an audio copy of a Mateer speech in which he admitted a religious bias against the LGBTQ community.
“Guess what? I attend a conservative Baptist church. We discriminate, alright. On the basis of sexual orientation, we discriminate,” Jeff Mateer said during a speech to the National Religious Liberties Conference in 2015, long before Trump nominated him. At the time, Mateer was general counsel for the conservative legal organization First Liberty Institute. “Does that mean I can’t be a judge? In some states, I think that’s true, unfortunately.”
According to Steve Susman, a managing partner of Susman Godfrey LLP and a Democrat on the Federal Judicial Evaluation Committee, the committee meets when there is a vacancy on the bench. They discuss candidates who have submitted applications to Cornyn and Cruz. Susman said the committee does not come up with the nominations themselves, but rather “they’re given to us to consider.” After the committee interviews the selected candidates, the group ranks interviewees through a vote.
On Nov. 15, Cornyn introduced Ho and Willett at a confirmation hearing. Cornyn detailed Ho’s background as an immigrant and a Texas Solicitor General. He spoke of Willet’s humble beginnings, his position as special assistant to George W. Bush at the White House and his appointment to the Texas Supreme Court by Governor Rick Perry.
“These two nominees reflect the comprehensive process of both the bipartisan Texas Federal Judicial Evaluation Committee that Senator Cruz and I have established as well as the White House Counsel’s Office and the Department of Justice, and I commend the President on these excellent nominations,” Cornyn said in the confirmation hearing.
Willett, who boasts the title of “Tweeter Laureate,” still secured a nomination for the Fifth Circuit Court of Appeals, despite targeting Trump with many of his tweets online. In his time at the White House during the Bush administration and while serving as a state assistant attorney general under Greg Abbott, he worked with the mainline Texas GOP, including Cruz and Cornyn, who recommended him for the position.
During a recent judiciary hearing with the Senate, Willett responded to concerns about a few tweets many regarded as insensitive to the LGBTQ community. One involved gay marriage, and the other focused on a transgender student athlete.
Though Willett seemed to take a lighthearted approach to the matter, his tweets still caught the attention of senators in the room. Senator Dianne Feinstein—a Democrat from California—felt Willett’s history reflects an unwillingness to recognize the plight females face relative to males. She largely based this on one of his memos from 1998. The Austin American-Statesman reported on the contents of that memo, in which Willett wrote: “I resist the proclamation’s talk of ‘glass ceilings,’ pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/harassment, and the need generally for better ‘working conditions’ for women (read: more government).”
Ryan Patrick, who was nominated as the U.S. attorney of the Southern District of Texas, is also connected to members of the Federal Evaluation Committee through his past political undertakings. His father chaired Cruz’s Texas campaign in 2016 and is currently highly involved in the Trump administration.
Despite having little experience in the federal court, with his potential role Patrick would be responsible for a district the Houston Chronicle said “ has the busiest criminal docket in the country,” listing immigration and trafficking—among other activities—as prevalent in the region.
In order to be appointed, the nominees require a vote from the U.S. Senate. Vacancies still exist in U.S. Attorney and U.S. District Court positions in each district of Texas, but before the Federal Judicial Evaluation Committee nominates the available 13 spots in the Texas Legislature, it’s important to establish the nature of their appointment process. The Senate is expected to vote on Ho and Willett sometime in December.
In addition to Susan, Shackelford, and Ho, the full membership of the Texas Federal Judicial Evaluation Committee includes Dallas investor Adam Ross; Bradley Knippa, the 2015 Cruz for president treasurer; Brady Edwards, an attorney who represented the George W. Bush campaign in lawsuits contesting the presidential election in Florida; Brooke Rollins, CEO of the conservative Texas Public Policy Foundation; Charles Eskridge, a Houston trial lawyer who represented Lehman Brothers International in lawsuits arising from the financial meltdown on 2008; Connie Pfeiffer, a Houston Republican lawyer; David Cabrales, a general counsel to former Governor Rick Perry; David J. Beck, a Houston lawyer appointed to the University of Texas board of regents by Governor Greg Abbott; David Prichard, a San Antonio lawyer; and Dee J. Kelly Jr., a Fort Worth lawyer who for years represented the millionaire Bass family.
Others include Gaylord T. Hughey Jr., an oil and gas lawyer from Tyler who bundled $358,000 in donations for Republican presidential candidate Mitt Romney in 2012; George L. McWilliams, a Republican lawyer from Texarkana; James E. Cousar, an Austin lawyer who focuses on corporate dispute resolution; Jeff Kubin, a Houston appellate lawyer and Cruz donor; John B. Beckworth, associate dean of the University of Texas law school; Kent Hance, former chancellor of Texas Tech University and partner in a Republican-leaning Austin law firm; Kent Sullivan, appointed as state commissioner of insurance by Governor Abbott; Lori Valenzuela, Republican judge of the 437th District Court in San Antonio; Manny Vela, president and CEO of Valley Baptist Health System; Maria Wykoff Boyce, a Houston lawyer; Matt Orwig, appointed by President George W. Bush as U.S. attorney for the Eastern District; Patrick O’Daniel, lawyer and former clerk to U.S. Supreme Court Justice Clarence Thomas; Raul Gonzales, Democrat and former Texas Supreme Court justice; Richard Roper, former Bush appointee as U.S. attorney for the Northern District of Texas; Scott Keller, former Cruz aide and now state solicitor general under Attorney General Ken Paxton; former Texas Supreme Court Chief Justice Tom Phillips, Republican; W. Gregory Looser, partner in Clarion Offshore Partners; and Zach Stone Brady, a Lubbock attorney.
Editor’s Note: An earlier version of this story incorrectly state that Governor Rick Perry appointed Justice Willett to the U.S. Supreme Court. Perry appointed him to the Texas Supreme Court.