Could This Conservative Judge Be the First Immigrant — and Asian-American — To Accede to the Supreme Court?

With the Supreme Court delivering victory after victory for the conservative legal movement under its current 6-to-3 Republican-appointed majority, one can expect that the high court will be the animating issue for GOP voters and elites alike for the foreseeable future. With Justices Clarence Thomas and Samuel Alito — the conservative anchors on the bench — reaching older age, could an appellate court judge from Texas be the next star conservatives will adore?Judge James Ho of the Fifth Circuit Court of Appeals, at the ripe age of 50, has lived a life only possible in America. Born in Free China and raised in California, he would graduate from Stanford University with a degree in public policy and later the University of Chicago law school. His educational pedigree led to professional experiences that filled a resume seemingly perfect for that of a would-be Supreme Court justice. From his perch on the bench — which he won in 2018 — he has made a name for himself not only as an interpreter of the law but as a conservative darling not unwilling to comment on the state of American political culture. He has written on the “moral tragedy” of abortion and penned the circuit court opinion in Dobbs v. Jackson Women’s Health Organization, which the Supreme Court upheld. He lamented that liberals treat the Second Amendment as “a second-class right.” Judge Ho has also included in legal writings complaints about the lack of control over the southern border and the mistreatment of law enforcement officers. Following his graduation at Chicago, he would make his way to the Fifth Circuit — the jurisdiction that he would later serve — to clerk for Judge Jerry Smith. Following that clerkship, he trekked to the nation’s capital, as most young, ambitious lawyers do, ingratiating himself in elite conservative legal circles. One year at the firm Gibson Dunn led to his service in the Department of Justice, first in the civil rights division and later in the Office of Legal Counsel at the outset of the global war on terrorism. By the time he was in his early 30s, he was chief counsel for multiple subcommittees on the Senate Judiciary Committee under the tutelage of Senator Cornyn. This brought him to the pinnacle of prestige for young lawyers, working as a clerk for Justice Thomas — a conservative star in his own right — during the 2005–06 term. That was a period of momentous transition. Chief Justice Rehnquist died of cancer just weeks before the term began, leading to John Roberts’s accession to chief justice. Justice Sandra Day O’Connor, author of the landmark Planned Parenthood v. Casey, would leave the court in January 2006, only to be replaced by Justice Alito, who would later pen the even more consequential Dobbs decision. All of this came as Judge Ho sat beside Justice Thomas, researching legal briefs and precedents, helping the veteran jurist write some notable dissents. One case during that term, Hamdan v. Rumsfeld, held that military commissions at Guantanamo Bay in Cuba meant for trying captured terrorists violated both the Uniform Code of Military Justice and the Geneva Conventions. Justice Thomas held firm in his dissent that Hamdan, a Yemeni who worked as Osama bin Laden’s personal bodyguard and chauffeur, had no such rights as an “enemy combatant.” Famously, the conservative justice tended to avoid speaking from the bench, both during oral arguments and in reading decisions and dissents. In this case, he eschewed his typical shyness and read his dissent from the bench. “It is clear that this Court lacks jurisdiction to entertain petitioner’s claims,” Justice Thomas wrote, arguing that the powers of an American president during a time of war are expansive enough to try accused enemies of the state in military tribunals. Clerks play an important role in researching and drafting opinions. So it is likely that Judge Ho was involved in this fiery dissent lambasting the court majority for attempting to restrict the president who, in Justice Thomas’s mind, had the authority to engage in more expansive methods of prosecuting terrorists. Where Judge Ho made his name in his own right, though, was after returning to Texas armed with the lessons he learned from Justice Thomas. He began his work in the office of Texas’s solicitor general, a position then held by Senator Cruz. When Mr. Cruz left the office in 2008, Judge Ho would replace him and champion a number of conservative causes, including defending his state’s ban on same-sex marriage. In a statement to the Sun, Mr. Cruz described his friend Judge Ho as an outstanding jurist. “I’ve known Jim Ho for many years, and I can say without hesitation that he is one of the finest appellate judges in the nation,” Mr. Cruz said. “He’s faithful to the text of the Constitution, compelling in his judicial opinions, and devoted to the Rule of Law.”The adoration Judge Ho elicits from conservatives is matched only by the disdain liberals have for the man. One legal commentator, James LaRock, called Judge Ho the “worst” judicial appointment made by President Trump. Mr. LaRock charges that Judge Ho “confuses being a federal judge with being a speechwriter for a right-wing shock jock’s presidential campaign.” Mr. LaRock believes that Judge Ho’s “pithy” legal writings are nothing more than a conservative opinion writer’s interpretation of the law. Judge Ho, despite his conservative bent and tendency to insert what critics call “culture war” grievances into his opinions, has won praise from liberals. No less than the liberal magazine Slate praised two dissenting opinions from the jurist that were issued in recent months. In Gonzalez v. Trevino, a Texas woman, Sylvia Gonzalez, sued city officials at her hometown of Castle Hills after she was arrested for keeping an official petition to have the city manager removed inside a binder. The mayor of Castle Hills, Edward Trevino, deputized a police officer and private citizen to investigate Ms. Gonzalez, which resulted in her arrest for violating a Texas law that made illegal the “concealing” of government documents. The fact that the petition was kept in a binder, law enforcement officials claimed, was proof of concealing documents. When the charges levied against Ms. Gonzalez were dropped by local prosecutors, she sued the city for violating her First Amendment rights in a case that would eventually reach a panel of the Fifth Circuit on which Judge Ho sat. His colleagues found no wrongdoing on the part of city officials, saying their involvement in her arrest was not a violation of her constitutional rights. In his dissenting opinion, Judge Ho could hardly mask his anger, saying his colleagues have made the American people “vulnerable to public officials who choose to weaponize criminal statutes against citizens whose political views they disfavor.” He lambasted city officials as “tormentors-in-office” who violated “the most fundamental value in American democracy” by using “coercive powers of government to punish and silence their critics.” He continued, calling their actions “heinous” and “unconstitutional.”Judge Ho’s defense of birthright citizenship may also seem out of step with the Republican Party’s recent nativist turn. Amid the ongoing primary battle for the 2024 Republican nomination, both Mr. Trump and Governor DeSantis have promised to do away with birthright citizenship should they reach the Oval Office. Judge Ho, before his time on the bench, made a passionate defense of birthright citizenship as a private citizen.As a native son of Free China, Judge Ho’s citizenship was guaranteed through entering the country legally alongside his parents, but he still argued that those born in this country, even if to foreign parents, are promised their own lifelong membership to America. “Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution,” Judge Ho wrote for the Wall Street Journal in 2011. Coming to the zenith of his power in 2018, Judge Ho acceded to the Fifth Circuit, where he would write not only consequential decisions and biting dissents in defense of a conservative constitutional philosophy but also comment on the state of affairs of American life more generally. This year, he announced that he would no longer consider hiring law clerks from two of America’s most prestigious law schools — Yale and Stanford. “My concern is how law students are treating everyone else they disagree with,” he said during a speech announcing his policy in respect of Yale Law graduates. “I’m concerned about what this is doing to the legal profession — and to our country.”Following the harassment of Judge Kyle Duncan, also of the Fifth Circuit, at Stanford’s Law School, Judge Ho announced he would also bar those graduates from working in his chambers as well. Judge Ho was already considered for a seat on the high court after the passing in 2020 of Justice Ruth Bader Ginsburg. On September 9 — just nine days before Ginsburg died — Mr. Trump spoke from the White House to announce his rolling list of potential Supreme Court nominees, which included Judge Ho. Now, he is in the spotlight once again. Presidential candidate Vivek Ramaswamy — who in a recent poll was tied with Mr. DeSantis for the no. 2 slot in the Republican primary — released his list of potential Supreme Court nominees on Monday in the hopes of building on his Iowa momentum, where evangelicals who are animated by the issue of abortion rights play an outsized role. At the very top of Mr. Ramaswamy’s list was Judge Ho.

Could This Conservative Judge Be the First Immigrant — and Asian-American — To Accede to the Supreme Court?

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