Trump-appointed judge defends rulings unpopular with 'cultural elites'

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U.S. Circuit Judge James Ho of the 5th U.S. Circuit Court of Appeals/ Reuters via Handout

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  • U.S. Circuit Judge James Ho in speech argues against "fair-weather originalism"
  • Ho warns against ruling so that "elites won’t be upset with you"

(Reuters) - A federal appeals court judge appointed by former Republican President Donald Trump argued jurists "must not be afraid of being booed" by issuing rulings unpopular with "cultural elites" and people who consider the U.S. Constitution "trash."

U.S. Circuit Judge James Ho of the 5th U.S. Circuit Court of Appeals told a Florida chapter of the Federalist Society on Tuesday that "principled originalists" like himself are being disparaged as "judicial arsonists" writing "bonkers opinions."

In prepared remarks to be published in the Texas Review of Law & Politics, Ho rebuffed criticisms of originalism, a mode of constitutional interpretation embraced by conservatives that aims to apply the intent of the U.S. Constitution's drafters.

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Ho, a former clerk to conservative U.S. Supreme Court Justice Clarence Thomas, said the legal theory should not be controversial, noting liberal Justice Elena Kagan in her 2010 confirmation hearing declared "we are all originalists."

More recently, Ho noted Supreme Court Justice-designate Ketanji Brown Jackson in March told the U.S. Senate Judiciary Committee she was focused on the Constitution's "original public meaning because I am constrained to interpret the text."

But Ho said it was one thing for judges to talk about being originalists and another to be one consistently, saying judges are "not binding ourselves to the text if we only follow it when people like the result."

"You’ve heard of 'fair-weather fans'," he said. "Well, if you’re an originalist only when elites won’t be upset with you — if you’re an originalist only when it’s easy — that’s not principled judging. That’s fair-weather originalism."

Ho as Texas solicitor general led the state's lawsuits against the Obama administration. Ho called abortion a "moral tragedy" in a 2018 concurring opinion in a case concerning a Texas law requiring the cremation or burial of "fetal remains."

His remarks come at a moment when the Supreme Court's newly minted 6-3 conservative majority appears poised to issue rulings that would roll back nationwide abortion access and expand gun rights amid a spree of mass shootings.

Ho, who was appointed to the 5th Circuit in 2018, did not touch on those cases in his speech. He has delivered a version of the speech since at least 2020 to chapters of the conservative legal group the Federalist Society, though it has not been published before.

But while Ho did not address the Supreme Court's pending cases, he said its conservative majority had been subjected to attacks as “radical,” “terrifying" and “brazenly partisan" for simply being "principled originalists."

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.