Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit told an audience Tuesday at Georgetown University that he “stands with” Ilya Shapiro, a libertarian scholar who recently stated that President Biden’s pledge to appoint a black woman to the Supreme Court could lead to a “lesser black woman” joining the high court.
Shapiro’s comment, for which he apologized, came as he was about to take a new leadership role at Georgetown. But an uproar by students and others led Georgetown Dean William Treanor to postpone Shapiro’s move pending an investigation. Treanor said Shapiro’s comments were “antithetical to the work that we do here every day to build inclusion, belonging, and respect for diversity.”
The Texas Lawbook obtained a copy of Ho’s remarks. He said he was scheduled to talk about originalism on Tuesday, but told the audience, “I’m going to spend my time today talking about Ilya Shapiro.” Ho said “cancel culture is not just antithetical to our constitutional culture and our American culture. It’s completely antithetical to the very legal system that each of you seeks to join.”
He added, “I would submit that, if I were a law student today, and I strongly disagreed with remarks made by someone who had just recently been hired by my law school, the last thing I would do is to call for that person to be fired.”
Ho’s talk spread widely on social media. Comments were mixed. David Cole, the ACLU’s national legal director, intoned: “Georgetown should not fire Ilya Shapiro, despite his offensive tweets. Academic freedom demands tolerance. And that’s a good thing.” Legal journalist Cristian Farias, a former writer in residence for the Knight First Amendment Institute at Columbia University and former editorial board member of The New York Times, tweeted: “This is neither judicial nor judicious behavior, but James Ho doesn’t care. He’s a culture warrior; he knows this crowd will lap it up unreservedly. More to the point: Everything he does, on and off the bench, is a performance so that he can remain in the running for #SCOTUS.”
The judicial system, Ho added, “is premised on the principle that, in any dispute, both sides deserve zealous legal representation. Because that is the best way to ensure that the truth will win out.”
“Ilya has said that he should have chosen different words,” Ho said. “That ought to be enough. I have no doubt — zero doubt — that Ilya did not intend anywhere near the worst interpretation that has been applied to his remarks.” Ho said he has known Shapiro for 20 years.
Ho recalled comments he made last year at a congressional hearing about the importance of diversity in the federal judiciary. He said then, “It would be profoundly offensive — and un-American — to tell the world that you’re restricting a judgeship to members of only one race. It’s offensive to people of other races. And it’s offensive to people of that race — because you’re suggesting that the only way they’ll get the job is if you rig the rules in their favor.”
Ho added, “If Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me too.” At another point, Ho said “While racism is a scourge that America has not yet fully extinguished, the first step in fighting racial discrimination is to stop practicing it.”
Born in Taiwan, Ho is the first Asian American judge on the Fifth Circuit, serving on the bench since 2018. He said in an interview with Texas Lawbook last year that he has experienced racism throughout his life. “Sure, not only as a minority on the playground as a young child, or as the kid who always brought weird food to school, but also as a member of the legal profession, receiving racist hate mail for positions I’ve taken at various stages in my career.”
In his speech before the Georgetown students, Ho also said, “It is true that I am the only Asian American on my court. I’m also the only immigrant on my court. But I would never suggest that a wise Asian would, more often than not, reach a better conclusion than a white judge. That would be antithetical to our legal system, and poisonous to civil society.
“No one should ever assume that I’m more likely to favor Asians or immigrants or anyone else — or that my colleagues are less likely to. Everyone should win or lose based on the law — period. That’s why Lady Justice wears a blindfold. That’s why judges wear black robes.”