Supreme Court Audition Watch: Working Hovertime
The Fifth Circuit’s thirstiest culture warrior is running out of ways to debase himself in public.
Since James Ho was confirmed to the Fifth Circuit in 2017, he has not allowed a day to pass without thinking about how to parlay this gig to get what he really wants: a promotion to the Supreme Court the next time a vacancy should arise under a Republican president. Delivering paint-by-numbers speeches about the excesses of cancel culture, condemning the scourge of racism against white people, and writing unironic opinions bemoaning the rise of a “woke Constitution” are not the sorts of things federal judges typically do, unless they measure success in the number of times they are mentioned during the Fox & Friends A-block.
Earlier this week, Ho delivered yet another highlight. Back on March 4, the Federal Judges Association—which is, as the name suggests, a national association of federal judges—issued a statement condemning the escalating threats of violence against judges who have blocked Trump administration initiatives in some form or another. Days later, Ho announced to an audience of aspiring Fifth Circuit clerks at a Federalist Society student conference that he had up and resigned from the FJA in protest of this “sanctimonious” little stunt. I want to be clear about what James Ho is proud of here: throwing a semi-public tantrum over a fairly milquetoast assertion that it is bad when people threaten to kill his colleagues on the internet.
The gravamen of Ho’s complaint is that FJA had not, in Ho’s opinion, sufficiently condemned previous criticisms of Justices Clarence Thomas, Sam Alito, or Brett Kavanaugh, all of whom Ho hopes to one day have the privilege of serving coffee during conference. “You can’t say that you’re in favor of judicial independence only when it comes to decisions that you like,” explained Ho, whose commitment to defending “free speech” generally ends the moment someone has the temerity to disagree with speech he likes. “That’s not protecting the judiciary, that’s politicizing the judiciary.” Do you see what he did there? With the alliteration? Neil Gorsuch’s reign as the Court’s most insufferable writer might come to an end soon!
Perhaps aware that FedSoc speeches alone will not dislodge Aileen Cannon as the prohibitive favorite, Ho has also infused his opinions of late with conservative dogma that just so happens to align with the sitting president’s policy agenda. “A sovereign isn’t a sovereign if it can’t defend itself against invasion,” Ho wrote last year, in a case about Texas’s efforts to take immigration enforcement into his own hands. In a follow-up interview published by The Volokh Conspiracy, Ho argued that the Fourteenth Amendment’s guarantee of birthright citizenship does not apply in cases of “invasion,” a word that, in his view, applies to people trying to enter the country with nothing more than the clothing on their backs.
Why did Ho feel the need to strain to make this relatively arcane point? Because in 2006, he wrote a law review article defending birthright citizenship as a constitutional right “protected no less for children of undocumented persons than for descendants of Mayflower passengers.” By correcting this little whoospie with a post hoc exception for “invasions,” Ho made clear that he is willing to interpret the law to mean whatever Trump thinks it ought to mean, no matter what he might have previously written to the contrary. Clumsy and embarrassing though Ho’s attempt to backtrack may be, it’s better than taking the risk that his application gets auto-shuffled to the “liberal squishes” pile next time the White House is perusing CVs.
This concludes the latest edition of James Ho Supreme Court Audition Watch, our occasional series on the man who knows that the only thing standing between him and the promotion he craves is whatever remains of his capacity to feel shame. Next month, when he challenges Kyle Duncan to a push-up contest streamed live on Rumble, rest assured that we’ll be back to break down the tape.
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I was a judge for 15 years of a 40 year legal career retired now. Judge Ho has been a judge for a cup of coffee as we used to say. He has civil practice and then a very short time being a judge. His comments about the safety of his colleagues is in a word ignorant. In another word, it’s disgusting. What a disappointment to see such a rank hack on the bench.
Ho doesn't seem to be doing himself any favors by his relationships with his fellow 5th Circuit judges. In one recent vote whether to rehear a case en banc, he was the only vote in favor of rehearing, and instead of taking the hint, he wrote a long dissent from the decision pointing out how every one of his 16 colleagues, apparently, was wrong.
In a second similar case, he did manage to get Chief Judge Elrod to vote with him to rehear (vs the 15 who did not), but she wouldn't even sign on to his dissenting opinion. And in a huge rebuke, most of the rest of the conservatives on the court, including every other Trump appointee, signed an opinion detailing why Ho was wrong. One might guess that they don't like him at all.