Supreme Court Audition Watch: James Ho Is In a Dark, Desperate Place
The federal judiciary’s sweatiest blogger is back with even more thoughts about “cultural elites.”
This week, I bring bittersweet news for readers who have spent the last few years tracking the conservative legal movement luminaries desperately slapfighting each other for President Donald Trump’s fleeting attention: Fifth Circuit judge James Ho, once the odds-on favorite to become the first Supreme Court justice to unironically use the phrase “woke Constitution” at oral argument, now senses that the nomination he covets is slipping from his clammy grasp.
How else, I ask, could one possibly explain Ho’s latest contribution to the Harvard Journal of Law & Public Policy, a Federalist Society-affiliated publication that will apparently print anything a federal judge submits if the student editors think it might land them a clerkship someday? As the title suggests, the article, “Not Enough Respect for the Judiciary—Or Too Much?”, is less anything resembling legal scholarship than a mishmash of non sequitur reactionary grievances, stitched together with footnotes to Bible verses, Fox News articles, and old Josh Blackman blog posts. Reading it is as close as you will ever get to knowing what a Tumblr post written by Ed Whelan on quaaludes might look like. Anytime a sitting federal judge who went to Stanford and the University of Chicago manages to cram 17 complaints about “elites” in less than 10 pages, you know you are peering into the mind of a man who is in a dark, dark place.
The thesis of Ho’s article, to the extent it is possible to identify one, is that those defending the “independence” of the federal judiciary from a president who seeks to swallow it whole are insincere phonies, since they did not speak out forcefully enough when someone said something mean to Brett Kavanaugh at a restaurant three years ago. If your critical thinking skills allow you to spot the relevant difference between a guy picketing a D.C. steakhouse and the literal President of the United States going on unhinged Truth Social tirades about federal judges who do not give him everything he wants, congratulations, you are more qualified for a Supreme Court appointment than the one guy who craves it more than anything else.
Ho does not limit his criticism to liberals, though, excoriating “fair-weather” originalist judges for ostensibly shying away from issuing full-throated rulings on “transgender ideology,” “illegal immigration,” and other “issues that most energize and anger cultural elites.” Although Ho celebrates what he refers to as an ongoing national “backlash against wokeness,” he is dismayed by his colleagues’ reluctance to join the culture wars as enthusiastically as he would like. In his view, the real challenge for modern originalists “is not a matter of intellect, but a matter of intimidation and insult”—in other words, too many chickenshit conservatives are too afraid of getting canceled to get rid of civil rights quickly enough.
In the article’s final (and thirstiest) section, Ho offers a few thoughts on his preferred criteria for selecting justices and judges, which tracks the same basic strategy I employed to pitch myself as a good boyfriend to my sixth-grade crush, who thereafter kept me firmly in the friend zone. Qualified candidates, Ho argues, should be “people you can trust to rule honestly,” rather than “based on who’s favored or disfavored by cultural elites.” They should be people who were originalists “from the beginning, even when it was hard—those who were with us, not out of convenience, but out of conviction.” And they should be people “whose goal isn’t to get onto a bench, but to get into heaven,” and who “will stand against the tide, stand up to the mob, and withstand the seductions and pressures of the cultural elite.”
Somehow, Ho was able to restrain himself from concluding by picking up a crayon and scrawling HELLO MISTER TRUMP SIR I AM DESCRIBING MYSELF, PICK ME, THAT’S J-A-M-E-S H-O, WAIT NO NOT AMUL THAPAR WHAT ARE YOU DOING in the margins of the version that made it to print. That said, it is subtext that a 79-year-old narcissist who is losing his faculties and still owes Aileen Cannon a really big favor will absolutely miss.
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We should think of Judge Ho every time we see Trump trampling on our Constitution by violating the First Amendment. Shortly before Trump was re-elected, Judge Ho set the example for Trump by attacking and undermining the freedoms of expression, communication, association and assembly ("the freedom of speech" and "press" and "the right of the people" to "assemble") that are expressly secured by our First Amendment.
Judge Ho led the charge to violate our Constitution by imposing extrajudicial punishment (in a mere letter signed by a cabal of rogue federal judges) on vulnerable law students for absolutely no reason other than that they chose to associate with people (merely attend Stanford, Columbia or Yale universities) after people at those universities dared to exercise our First Amendment rights and freedoms to support a viewpoint that Judge Ho opposes or to oppose a viewpoint that Judge Ho supports.
Judge Ho is unworthy of the title "judge." He is even more unworthy of the title "justice." He has knowingly, repeatedly and maliciously violated his oath to support our Constitution. Judge Ho's misconduct already has far too much encouraged and emboldened Trump's misconduct.
Might make one think about how "Judge Ho" seems like something like an onomatopoeia.