Robe Show

Earlier this month, federal Judge James Ho launched a rant against his liberal colleagues – and the people who defend them.

“I’m tired of hearing judges today complain about threats to judicial independence. These judges need to get over themselves,” he wrote. As for their supporters – the “cultural elites” – they “vigorously defend district judges against criticism – unless those judges live in Texas or Florida. They strenuously condemn forum shopping – but not if the courts are in Boston or San Francisco. They strongly oppose the impeachment of judges – when those judges are named Thomas or Alito.”

This is pretty standard fare from Ho, a Trump appointee whose big talk and showy opinions have propelled him to prominence as a far-right appeals court judges. What’s striking, though, is where his words appeared and how the judge is viewed. Ho was writing in a law journal rather than a court opinion, and he’s high on lists of President Trump’s potential Supreme Court nominees. This shows he’s auditioning for the job of justice, critics contend, playing to a president fond of calling liberal judges “sick” and “monsters” and “very dangerous for our country.”

Maybe the critics are right. But if so, Ho – and the ambitious judges like him – are going about it all wrong.

His look-at-me act has been playing since well before 2017, when Trump picked him for the U.S. Court of Appeals in New Orleans – the Fifth Circuit. Even in high school, he acted and danced. An acolyte of Ted Cruz, he succeeded the now-U.S. senator as Texas solicitor general and grabbed headlines by defendingthe addition of “under God” in the state’s Pledge of Allegiance and persuading the Supreme Court to reinstate a death sentence that the Fifth Circuit had reversed. As a judge, his opinions – often dissents – have rung with slaps at his liberal colleagues. In dissenting to the Fifth Circuit decision striking down Mississippi’s anti-abortion law, the case that became the Supreme Court’s 2022 death knell for Roe v. Wade, he spent his entire opinion berating Carlton Reeves, the trial court judge who had handled the case.

The point is that Ho’s behavior isn’t really an act. It’s a display of who he is: a rock-ribbed, conservative creature of politics with a knack for high-profile attacks that thrill constituents. It doesn’t necessarily make him a bad judge, but history tells us that even in the era of Trump, relative fame and controversy rarely gets you on the Supreme Court.

The last remotely famous figure who became a top-court justice was probably Earl Warren, in 1953. Since then, most justices have ascended to the bench from beyond the public eye. On the left, judges like ultra-liberal Stephen Reinhardt in California were constantly touted as potential justices but, as lightning rods, never made it. On the right, it was well-known judges like Robert Bork. Of the current justices, Elena Kagan was the dean of Harvard Law School, and Clarence Thomas was head of the U.S. Equal Employment Opportunity Commission, but even they didn’t draw much public attention before they went on the court.

Yet, it looks as if a host of current lower-court jurists are auditioning, jumping up and down to persuade the president to promote them. What else could Aileen Cannon, the Florida judge who killed the stolen-documents case against Trump, or Matthew Kacsmaryk in Texas, who banned the abortion pill mifepristone, be doing? Like Ho, they are partisans – acting as political players because that is merely who they are. And truth be told, their partisanship is probably why they were picked in the first place, a political strategy that both sides can get away with because the public doesn’t pay much notice to a lower-court nominee.

It’s different for Supreme Court hopefuls, of course, which is why so many have come to the Senate confirmation process with low public profiles. The people who choose them know who the judges are, and they have sent all the right signals through their rulings, but they can claim that they’ll just follow the law and call balls and strikes without making too many senators laugh.

It’s possible the world has changed so much under Trump that none of this applies any longer, that if he gets the chance, the president we’ll nominate someone just to provoke outrage – and a submissive Senate will go along. That seems unlikely. Maybe it’s the appalling scenes of ICE thuggery in Minneapolis or the lunacy of investigating the chairman of the Federal Reserve, but more lawmakers seem hesitant now to knuckle under – especially when they may get what they want without the drama of a provocative pick.

The good news is that you probably won’t see the likes of James Ho on the Supreme Court any time soon. The bad news? We’re stuck for a while with the court we have.