Judge James Ho Targets ‘Bias’ at Law Firms Amid Trump Attacks

Fifth Circuit Judge James Ho said many of the US’s largest law firms are suffering from “institutional bias,” amid President Donald Trump’s attacks on firms that he views as enemies.

The US Court of Appeals for the Fifth Circuit voted 10-5 on March 14 against a full court rehearing of a panel decision, in which the court had said Mississippi couldn’t accept mail ballots after election day. Ho, alongside fellow Trump appointees Stuart Kyle Duncan and Andrew Oldham, had issued that panel ruling.

Judge Stephen Higginson, a Barack Obama appointee, in a dissenting opinion credited attorney Adam Unikowsky, a partner at the law firm Jenner & Block, for a critique he wrote of the panel decision.

“We benefit from lawyer insight and criticism. Though we receive amicus curiae briefs less frequently than the Supreme Court, they provide primary opportunity for non-party lawyers to give insight, albeit with stringent requirements,” Higginson wrote. “It is rarer that topflight lawyers, like Unikowsky, have time to offer scholarly critique of a case” that he or another attorney who wrote against the ruling, Richard Bernstein, weren’t hired to handle.

Ho, who voted against reviewing the panel ruling, said that Higginson appeared to be implying that the panel decision “may be so off the mark that leading members of the profession have felt compelled to speak out.”

But Ho said that the pro bono attention in the case “may just reflect the institutional bias at many of the nation’s largest law firms.”

Ho cited findings by legal scholars that law firms are more likely to represent liberal groups in pro bono amicus briefs at the Supreme Court than conservative causes. He said there’s a concern that firms “have abandoned neutral principles of representation, and instead engage in ideological or political discrimination in the cases that they’re willing to take on.”

“To be sure, evidence of political and other forms of bias doesn’t by itself make a particular legal position right or wrong in any given case,” Ho wrote. “But it does mean that we shouldn’t be surprised when ‘topflight’ firms consistently jump in on only one side of politically charged disputes, including this one—whether the law actually supports their position or not.”

“Nor should the firms themselves be surprised when others take notice that they are no longer abiding by the principles of the profession, and react accordingly,” he added.

Ho said that while lawyers have the right to share their opinions, courts should treat their work “as motivated lawyering designed to reach a predetermined result.”

Ho has frequently spoken out against “viewpoint discrimination,” particularly against conservative causes. An outspoken judge, he’s viewed as a potential front-runner for a Supreme Court seat if one were to open during Trump’s second term.

Trump has lashed out against certain law firms and attorneys in recent weeks. He issued a Feb. 25 memo stripping security clearances from lawyers with the DC firm Covington & Burling who had advised Special Counsel Jack Smith. Smith had twice indicted Trump, but those cases were dropped after the president’s election win.

A DC federal judge on March 12 blocked parts of an order Trump issued against law firm Perkins Coie over its work for Hillary Clinton and fighting Trump-aligned lawsuits stemming from the 2020 election. And on March 14, the administration went after Paul Weiss, over the firm’s ties to lawyer Mark Pomerantz, who had pushed for charges against Trump while working at the Manhattan district attorney’s office. Pomerantz left the firm in 2022.

The case is Republican Natl Cmte v. Wetzel, 5th Cir. en banc, No. 24-60395, 3/14/25.