It was rather a shocker to read that James C. Ho, a judge on the U.S. Fifth Circuit Court of Appeals, is boycotting Yale Law School. Ho reportedly told a Sept. 29 gathering of the conservative Federalist Society that he would “no longer hire law clerks from Yale Law School.” Not only that, but he also urged other judges to boycott Yale graduates. The Fifth Circuit is notoriously conservative, but this was a step beyond the pale for that rightwing bastion.
For those who may not know, state and federal court appellate judges often have one to four law clerks, usually recent law school graduates, who assist with all aspects of the appeal process — reviewing the record, researching the issues, drafting memos for oral argument and assisting in the drafting of opinions. They are invaluable to the appellate process. The positions are prestigious and highly sought-after by law graduates. Those hired are generally from the top ranks of their graduating class.
Judge Ho seems to be fearful that Yale-educated lawyers would exercise some sort of evil influence over him. Heaven forbid that they might produce the kind of even-handed, top-quality work that most appellate judges expect.
Ho’s thinking is a blight on the judiciary and an example of why the public is losing confidence in the federal judiciary. When did it become appropriate for a judge in a high-profile position to openly publicize his political leanings? I served on the Idaho Supreme Court for 12 years and could not imagine anyone on that court having such wretched judgment.
Each judge on my court could have two clerks. I hired based primarily upon legal competence and secondarily on societal involvement. The political views of applicants were not sought and played no part in hiring, although I must admit that seeing the Federalist Society listed on a resume was a source of concern about the applicant’s potential political bias. In my view, there is no place for political influence in a court’s work. Justices on our court often voted to approve opinions that conflicted with their personal beliefs. No less is required under the oath of office and rule of law.
In advertising his political outlook for all to see, Ho was channeling his U.S. Senate champion, Sen. Ted Cruz (R-Texas), rather than the Supreme Court justice for whom he clerked, Clarence Thomas. We all know where both of these conservatives stand, but one advertises while the other doesn’t.
Cruz spouts GOP talking points at the drop of a ten-gallon Texas hat. Thomas, in contrast, tries to maintain the facade of being an impartial jurist. Indeed, the GOP appointees to the Supreme Court have disavowed political influence in their work. Clarence Thomas has vigorously denied that politics plays a part in the Court’s decisions. His denials ring a bit hollow in light of his rulings, as well as the wacky rightwing antics of his wife, Ginni, who has been a highly visible proponent of the “Big Lie” that Donald Trump won the 2020 presidential election.
Justice Samuel Alito, defending the majority’s use of peremptory orders to essentially decide important cases, claimed the Court was not “a dangerous cabal…deciding important issues in a novel, secretive, improper way, in the middle of the night, hidden from public view.” Justice Neil Gorsuch addressed a closed-to-the-public meeting of the Federalist Society, which is primarily responsible for placing him, Amy Coney Barrett and Brett Kavanaugh on the Court. Well, the meeting may have been hidden from public view, but it was not held in the middle of the night and no decisions were made.
And Justice Barrett famously defended the majority, saying the Court “is not comprised of a bunch of partisan hacks.” She added, “Judicial philosophies are not the same as political parties.” They don’t necessarily fit the description of “hacks.” A more appropriate word would be “zealots.”
Having raised these various anti-bias defenses, these justices preceded to change the political landscape in the United States with breathtaking, politically-driven decisions that expanded gun rights, removed federal abortion protection and hamstrung environmental regulators, while teeing up new cases that portend significant changes in LGBTQ rights, voting rights and affirmative action. So much for the Court majority’s claims of impartiality on hot-button issues.
As repugnant as Judge Ho’s revelation about his political leanings is, that is probably preferable to the justices who loudly profess impartiality in public while silently pursuing a conservative agenda on the bench. The latter reeks of hypocrisy and dishonesty. You can’t fault Judge Ho on that count, although he can certainly be faulted for paying fealty to the Federalist Society rather than to the rule of law.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.