James Ho’s Post-Election Remarks Fuel Supreme Court Speculation

Fifth Circuit Judge James Ho’s public remarks since Election Day have rekindled talk of a possible audition for the Supreme Court.

In the days after President-elect Donald Trump won back the White House, Ho referenced a gaffe by President Joe Biden against Trump supporters, publicly changed his position on birthright citizenship in a way that aligns with the Trump agenda, and appeared on a popular legal podcast from a conservative news outlet.

“For judges who are ambitious, it’s a way to put your name on the Supreme Court shortlist,” Kenneth Manning, a professor at the University of Massachusetts Dartmouth who researches judges, said of Ho’s recent comments. “I don’t think there are many people who doubt that Ho’s maneuvers here are probably an attempt to do that.”

Ho didn’t return a request for comment.

There are no current vacancies on the Supreme Court, and none of the justices have publicly indicated plans to step down. But Ho, 51, a former law clerk for Justice Clarence Thomas who was on a past shortlist for a Trump Supreme Court pick, has both the conservative resume and academic credentials that could see him help cement the high court’s conservative supermajority for the coming decades.

One of his former law clerks threw cold water on the idea that Ho has a Supreme Court seat in mind.

“Judge Ho loves his family and loathes D.C.,” Gibson Dunn partner Brad Hubbard said in an email. Ho’s chambers are in Dallas.

Hubbard noted that Ho’s wife, fellow Gibson Dunn partner Allyson Ho, is an appellate lawyer who has argued two cases before the Supreme Court in the past year. If Judge Ho were to become a justice, it would raise conflicts issues for his spouse.

“I think that’s why he feels free to speak his mind now, just as he has in public writings and speeches for the past 30 years,” Hubbard said.

Birthright citizenship

In the interview with South Texas College of Law professor Joshua Blackman, published Nov. 11, Ho opened the door to ruling against birthright citizenship for undocumented migrants, after writing nearly two decades ago that only a constitutional amendment could undercut the right established by the 14th Amendment.

Ho pointed to his writings on the appeals court, in which he’s embraced the declaration by Texas Gov. Greg Abbott (R) of an “invasion” on the state’s border with Mexico in litigation.

Ho said those who have read his writings on the invasion declaration and on birthright citizenship “should see a direct connection” between the two.

“No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship,” Ho said. “And I can’t imagine what the legal argument for that would be.”

That stands in contrast to a 2006 law review article, in which Ho — a Taiwanese immigrant who has since become a US citizen — had said it would take a constitutional amendment to revoke birthright citizenship. Trump has publicly said getting rid of birthright citizenship is a goal for his incoming administration.

Some outside observers have seen Ho’s new comments as trying to appeal to Trump’s desires, as his stance on the issue could potentially be disqualifying for a Supreme Court nomination.

“By shifting positions, Ho seems to be indicating acquiescence to Trump’s position,” Manning said.

Outspoken judge

In the years since Trump appointed him to the federal appeals court, Ho hasn’t been shy either on or off the bench. He’s written lengthy opinions in court fights that range from border policies to discrimination against white people. He’s given speeches about judges needing to stand by decisions that might be unpopular in liberal circles, and spoken out against policies against “judge shopping,” a tactic utilized by conservative litigants challenging Biden administration actions.

Days after the Nov. 5 election, Ho opened up a Federalist Society panel on academic freedom by taking a swipe at critics of the Supreme Court, which has a conservative supermajority after Trump appointed three justices. “Too many academics regard the views of half the country as garbage,” he said, days after Biden referred to Trump supporters as “garbage” in a gaffe.

He expanded on those remarks in the Nov. 11 interview with Blackman. “Too many of them believe that any judge who follows the written Constitution, rather than a woke constitution, deserves to be trashed,” Ho said of those academics.

Ho has perhaps been most publicly outspoken about not hiring law clerks from Stanford, Yale or Columbia University over those institutions’ respective handling of student protests.

On the Nov. 12 live recording of an episode of the podcast Advisory Opinions, host Sarah Isgur – a former Trump Justice Department spokesperson – asked Ho why he agreed to do the podcast after previously turning down requests.

“You featured some judges who have talked negatively about something that I feel very passionate about,” Ho said. “So I thought, ‘ok you know what? If judges are going to be speaking out about this I would like a chance to respond.’”

He appeared to be referencing criticism by another preeminent conservative jurist, Judge Amul Thapar of the Sixth Circuit, who said he disagrees with excluding students “to punish their law school.”

Historic parallels

Supreme Court experts said that while there’s a history of potential justices trying to put themselves out there for a nomination, it’s largely been through their opinions and not public comments.

“Your decision making on the courts of appeal, particularly when you write opinions, is a good way to sort of establish your bonafides on either side,” said Jonathan Kastellec, a professor of politics at Princeton University who has written about Supreme Court nominations

Then-Judge Brett Kavanaugh was seen by some as auditioning for the Supreme Court with certain rulings he authored as a judge on the DC Circuit.

But speaking out publicly as part of a potential effort to get on the court is a new development, as is the erosion of the norm about sitting judges trying to avoid coming across as too partisan, said Lori Ringhand, a law professor at the University of Georgia who has written about Supreme Court confirmation hearings.

“I think up until relatively recently, overtly violating that norm might have been, if not disqualifying, at least something that would give a president or senators pause,” she said of a prospective Supreme Court nominee. “We’re obviously in kind of a norm-shattering era, so it’s hard to say if that will revert to the norm.”