American Family Association Action (AFA Action), is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association (AFA).
Judge on the U.S. Court of Appeals for the Fifth Circuit
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Ho was born in Taipei, Taiwan.[1] Ho has described his early life in the U.S. and the significance of equal opportunity. Ho said, “I came to America from Taiwan at a very young age. Most kids grow up learning English from their parents. I grew up learning English from a bunch of puppets, from a place called Sesame Street. My classmates brought a kids’ lunch box to school. I brought a bento box to school. My food seemed normal to me. But it smelled funny to my classmates—or so they would tell me. And I remember racial slurs and jokes on the playground and on the football field. But I also learned that, if you work hard and prove yourself, you can find your place in America. Equality of opportunity is not something to be passive about—it’s something we should be passionate about. We must make sure that everyone has the opportunity to learn and to succeed, so that win, lose, or draw, at least you got a chance—no matter who you are. That’s not just a talking point to me.”[2] Ho is a naturalized U.S. citizen. He believes that what unites us as Americans is a shared love of freedom. He has said, “As a judge, I have the honor of presiding over a naturalization ceremony every year, to celebrate my own naturalization thirty-nine years ago. People from all around the world come together in one room, for one purpose—to become an American. And it reminds me that what binds our nation is not a common race, or religion, or philosophical point of view. What unites us is not a common past, but a common hope for the future—a shared love of freedom—and a mutual commitment to the Constitution and to the principle of equality of opportunity.”[3] Ho has described the relationship of biology to the legal institution of marriage, which he had referenced in a brief defending Texas’s ban on same-sex marriage. He explained, “The brief of the State of Texas in B. stated that ‘[t]he naturally procreative relationship between a man and a woman deserves special societal support and protection,’ citing several U.S. Supreme Court and other decisions, including Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942), Loving v. Virginia, 388 U.S. 1 (1967), and Baker v. Nelson, 409 U.S. 810 (1972), aff’g 191 N.W.2d 185 (Minn. 1971).”[4] Judge Ho met his wife Allyson, also an attorney,[5] at a Federalist Society law school event.[6] In the 1990s, Ho was a legislative aide for California State Senator Quentin L. Kopp, a member of the Independence Party.[7] In 2004, Ho was a speaker for Asian Pacific Americans for Bush-Cheney at the Republican National Convention.[8] In 2008, Ho served as an adviser to Republican Pete Olson’s congressional campaign.[9] Olson was the leader of 20 Republican lawmakers who called for the impeachment of Obama administration Attorney General Eric Holder.[10] Judge Ho was also on the Board of Directors of “Ted Cruz for Senate” from 2011 to the time of his Senate Questionnaire responses in 2017.[11] He served as an adviser to Ted Cruz’s presidential campaign from 2015-2016 and appeared in a Cruz campaign video in 2015, as well.[12]
[1] James C. Ho, Federal Judicial Center, https://www.fjc.gov/history/judges/ho-james-c.
[2] Joan of Ark La Tex, Judge James Ho Courageously Spoke Against Asian-American Wokeism, Ricochet (Mar. 28, 2021), https://ricochet.com/922214/judge-james-ho-spoke-courageously-against-asian-american-wokeism/ (bold and emphasis added). A video recording of Judge Ho’s statements is available at: https://www.youtube.com/watch?v=u8Op21yArpE&t=2075s beginning at 34:30.
[3] Joan of Ark La Tex, Judge James Ho Courageously Spoke Against Asian-American Wokeism, Ricochet (Mar. 28, 2021), https://ricochet.com/922214/judge-james-ho-spoke-courageously-against-asian-american-wokeism/ (bold and emphasis added). A video recording of Judge Ho’s statements is available at: https://www.youtube.com/watch?v=u8Op21yArpE&t=2075s beginning at 34:30.
[4] S. Questions for Answer, p. 20. Questions from Senator Whitehouse. Question #7a.
[5] S. Questionnaire, p. 70. Link here.
[6] S. Questions for Answer, p. 15. Questions from Senator Durbin. Question #7a.
[7] S. Questionnaire, p. 3. Link here.
[8] S. Questionnaire, p. 56. Link here.
[9] S. Questionnaire, p. 56. Link here.
[10] Mario Trujillo, Twenty House Republicans Call for Holder Impeachment, The Hill (Nov. 14, 2013), https://thehill.com/blogs/blog-briefing-room/news/190219-gop-members-seek-to-impeach-holder/.
[11] S. Questionnaire, p. 9. Link here.
Judge Ho is a defender of originalism and separation of powers. He has said originalism should not be controversial and that jurists "must not be afraid of being booed" by issuing rulings unpopular with "cultural elites" and those who consider the Constitution to be "trash."[13] He has also said that judges are "not binding ourselves to the text if we only follow it when people like the result."[14]
[13] Nate Raymond, Trump-appointed judge defends rulings unpopular with 'cultural elites', Reuters (June 7, 2022). Link here (bold and emphasis added).
[14] Nate Raymond, Trump-appointed judge defends rulings unpopular with 'cultural elites', Reuters (June 7, 2022). Link here (bold and emphasis added).
Judge Ho believes in allowing Bishops to express their objection to abortion not only in belief, but in action as well.[15] Ho also believes it is appropriate to have religion throughout government. He has written, “But the whole point of the First Amendment, of course, is to privilege religion…‘Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; “so help me God” in our courtroom oaths—these and all other references to the Almighty . . . run through our laws, our public rituals, [and] our ceremonies.’ ”[16]
[15] Whole Woman's Health v. Smith, 896 F.3d 362 (5th Cir. 2018). Link here.
[16] McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, Inc., 980 F.3d 1066, at 1073 (5th Cir. 2020). Link here (bold and emphasis added).
Judge Ho has expressed disdain for other courts’ decisions that limited religious liberty.[17] Before becoming a judge, Ho defended religious liberty as an attorney.[18] Ho wrote an Amicus Curiae Letter in a matter that explained, “The Texas Religious Freedom Restoration Act…reflects a simple yet important policy judgment: When government regulation conflicts with religious activity, courts must rule in favor of religious activity, unless the government can articulate a compelling state interest that cannot be achieved unless the religious activity is subject to the regulation. Put simply, absent the most extraordinary circumstances, local governments must respect people of faith.”[19] On the bench, Judge Ho has written, “In short, protecting religious institutions from government interference is not just the point of the church autonomy doctrine that the Supreme Court has recognized for nearly 150 years—it is foundational to who we are as Americans.” [20]
[17]Ho & Shackelford, US Courts: Can’t pray at work, can’t pray at home, THE HILL (Sept. 9, 2017). Link here (emphasis added).
[18] Brief for Dr. S. Simcha Goldman as an Amicus Curiae, Sterling v. United States, 137 S. Ct. 2212 (2017), at p. 3. Link here.
[19] Amicus Curiae Letter Brief, Morgan v. Plano Indep. School. Dist., 589 F.3d 740 (5th Cir. 2009) (bold and emphasis added).
[20] McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, Inc., 980 F.3d 1066, 1073 (5th Cir. 2020). Link here (bold and emphasis added).
Judge Ho volunteered with First Liberty Institute. [21] He wrote a concurrence in Dobbs before it reached SCOTUS which stated: “The opinion issued by the district court displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.”[22] In Whole Woman’s Health v. Smith,[23] Judge Ho wrote in concurrence, "The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains."[24]
[21] Mark Joseph Stern, Trump-Appointed Judge Bemoans the “Moral Tragedy” of Abortion, Accuses Lower Court of Anti-Christian Bias, Slate (July 16, 2018). Link here.
[22] Jackson Women's Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019). Link here (bold and emphasis added).
[23] Whole Woman's Health v. Smith, 896 F.3d 362 (5th Cir. 2018). Link here.
[24] Mark Joseph Stern, Trump-Appointed Judge Bemoans the “Moral Tragedy” of Abortion, Accuses Lower Court of Anti-Christian Bias, Slate (July 16, 2018). Link here (bold and emphasis added).
Judge Ho defended the Texas ban on same-sex marriage as the solicitor general. As the Texas Solicitor General, Ho wrote the following in a brief filed on behalf of the state in In re J.B.[25]: “The naturally procreative relationship between a man and a woman is uniquely deserving of special societal support and protection…”[26]
[25] In re J.B., 326 S.W.3d 654 (Tex. App. 2010). Link here.
[26] In re J.B., 326 S.W.3d 654 (Tex. App. 2010). Link here (bold and emphasis added).
Ho believes federal bans on interstate handgun sales are unconstitutional. Mance v. Sessions involved a challenge to federal bans on interstate handgun sales. In Judge Ho’s dissent, he stated, “The ban on interstate handgun sales demonstrably burdens the ability of countless law-abiding citizens like the Hansons to obtain a handgun.”[27] While serving as the Solicitor General of Texas, Ho wrote the amicus brief McDonald v. Chicago, which represented 38 states challenging Chicago’s ban on handguns. He wrote, “the right to keep and bear arms [is] the ultimate guarantor of all the other liberties enjoyed by Americans.”[28]
[27] Mance v. Sessions, 896 F.3d 390, 399 (5th Cir. 2018). Link here (bold and emphasis added).
[28] S. Questions for Answer, p 4. Questions from Senator Feinsteins, Question #3 (bold and emphasis added).
Judge Ho seems to have some conflicting views surrounding race and education. His views on racial policy and color blindness contradict how he viewed race when it related to school admission. Ho was lead counsel for the appellants in the case of Fisher v. Univ. of Tex. and wrote, “UT’s…broad vision of diversity also includes race. [UT’S] educational interests mirror those expressly validated by Grutter.”[29] This view seems to contradict how he viewed race when it came to school admissions. In a concurring opinion, Judge Ho wrote, "Prohibiting racial discrimination means we must be blind to race. Disparate impact theory requires the opposite…”[30]
[29] Brief for Appellees, Fisher v. Texas, 556 F. Supp. 2d 603 (W.D. Tex. 2008) (bold and emphasis added).
[30] Rollerson v. Brazos River Harbor Navigation Dist. of Brazoria Cnty. Texas, 6 F.4th 633, 648 (5th Cir. 2021). Link here (bold and emphasis added).
Judge Ho has been outspoken regarding giving power to those in unelected positions,[31] and has opposed the expansion of the administrative state. Ho signed onto a dissent that reads, "Our Founders fought a war to defend the principle of ‘no taxation without representation.’ And that is precisely the principle Plaintiffs seek to vindicate today. The federal government forces them to pay nearly half a billion dollars—not by an act of their elected representatives in Congress, but by private entities acting in collusion with unelected public bureaucrats."[32]
[31]Texas v. Rettig, 993 F.3d 408, 409 (5th Cir. 2021). Link here, PDF p. 4.
[32] Texas v. Rettig, 993 F.3d 408, 409 (5th Cir. 2021). Link here, PDF p. 20 (bold and emphasis added).
Ho has been an active member of the Federalist Society for 26 years and has held 10 different leadership positions within the organization.[33] Ho was a dedicated volunteer attorney for First Liberty Institute and donated thousands pro bono hours.[34]
[33] Nomination of James Ho to the U.S. Court of Appeals for the Fifth Circuit – Serious Concerns, The Leadership Conference on Civil and Human Rights. Link here.
[34] First Liberty Volunteer Attorney Appointed as Federal Appeals Judge, First Liberty (Dec. 16, 2017). Link here.
Ho has spoken against big government and written such in opinions. He has stated in dissent, “if you don’t like big money in politics, then you should oppose big government in our lives.”[35] Ho has also shown respect to religious objections to vaccine mandates, including mandates for the COVID-19 vaccine. In a pre-pandemic case, Judge Ho defended a firefighter who objected to the flu and DTAP vaccines, stating, “The right to free exercise means that government cannot force citizens to choose between one’s faith and one’s livelihood, absent a compelling reason."[36] In his dissent in Sambrano v. United Airlines, Judge Ho wrote on a COVID vaccine mandate, "Forcing individuals to choose between their faith and their livelihood imposes an obvious and substantial burden on religion. Make no mistake: Vaccine mandates like the one United [Airlines] is attempting to impose here present a crisis of conscience for many people of faith."[37] Judge Ho also wrote, “It is difficult to imagine how a crisis of conscience, whether instigated by government or industry, could be remedied by an award of monetary damages. Take this case: The person who acquiesces to United's mandate despite his faith doesn't lose any pay. But he will have to wrestle with self-doubt—questioning whether he has lived up to the calling of his faith. Likewise, the person who refuses must also wrestle with self-doubt—questioning whether his faith has hurt his family, and whether living up to his commitments was worth sacrificing the interests of his loved ones."[38]
[35] Emma Platoff, Trump-appointed judges are shifting the country’s most politically conservative circuit court further to the right, The Texas Tribune (Aug. 30, 2018), Link here; See also Zimmerman v. City of Austin, Texas, 888 F.3d 163, 170 (5th Cir. 2018), Link here, PDF p. 13 (bold and emphasis added).
[36] Horvath v. City of Leander, 946 F.3d 787, 799 (5th Cir. 2020), as revised (Jan. 13, 2020). Link here, PDF p. 18 (bold and emphasis added).
[37] See Sambrano v. United Airlines, Inc., 19 F.4th 839, 841 (5th Cir. 2021). Link here, PDF p. 3 (bold and emphasis added).
[38] See Sambrano v. United Airlines, Inc., 19 F.4th 839, 842 (5th Cir. 2021). Link here, PDF p. 5-6 (bold and emphasis added).
Best meets the ten principles of a constitutional judge.
Rating: GreyNeutral. Record is not as fully developed. Cannot be rated as “green” or “red.”
Rating: RedFails to meet the ten principles of a constitutional judge.
AFA Action is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association.