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Judiciary

5th Circuit judge’s remarks spur talk of Supreme Court audition

By Debra Cassens Weiss

December 19, 2024, 3:35 pm CST

Public remarks by a conservative federal appeals judge have “rekindled talk of a possible audition for the Supreme Court,” according to a story by Bloomberg Law.

Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans is already known for boycotting the hiring of clerks from law schools that he thinks have mishandled student protests or stifled conservative views.

Now, he is getting attention for comments about birthright citizenship, people who think that conservative viewpoints are “garbage,” and his appearance on a conservative podcast.

Bloomberg Law highlighted these remarks:

  • Ho appeared to embrace an argument against birthright citizenship, enshrined in the 14th Amendment, in an interview with Josh Blackman, a professor at the South Texas College of Law in Houston, published at the Volokh Conspiracy. “Birthright citizenship obviously doesn’t apply in case of war or invasion,” Ho said as he referred to a prior case in which Texas argued that illegal immigration qualifies as an invasion under the Constitution. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.”

  • On a panel for the conservative Federalist Society, Ho took “a swipe at critics of the Supreme Court,” according to Bloomberg Law. “Too many academics regard the views of half the country as garbage,” Ho said. He also may have been referencing a comment by President Joe Biden, who appeared to call supporters of President-elect Donald Trump “garbage.”

  • In an interview with the conservative Advisory Opinions podcast, Ho said he agreed to appear to counter negative remarks by some judges. He appeared to be referring to criticism by Judge Amul Thapar of the 6th Circuit at Cincinnati, who said he doesn’t think that law grads should be boycotted in clerk hiring to punish their schools.

At least one person doesn’t think that Ho’s remarks are intended to increase his chances for a Supreme Court nomination.

Brad Hubbard, a partner at Gibson, Dunn & Crutcher and one of Ho’s former law clerks, told Bloomberg Law that Dallas-based Ho “loves his family and loathes D.C.”

Ho’s wife is a Gibson Dunn partner who has argued before the Supreme Court, which could lead to conflicts issues if Ho becomes a justice.

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U.S. Supreme Court

Who may be on Trump’s Supreme Court short list? Senate win aids judicial picks

By Debra Cassens Weiss

November 6, 2024, 3:12 pm CST

President-elect Donald Trump could get a chance to appoint two U.S. Supreme Court justices if Justice Clarence Thomas, 76, and Justice Samuel Alito, 74, decide to retire.

“With two more appointees,” Law360 reports, “Trump could single-handedly cement the Supreme Court’s conservative supermajority for decades to come.”

These judges and lawyers are potential nominees, according to Law360, an op-ed in the New York Times by the editor of a liberal blog, Fox News and a Bloomberg Law story on potential Asian American and Pacific Islander picks.

  • Judge Stuart Kyle Duncan, the 5th U.S. Circuit Court of Appeals in New Orleans. He is the former general counsel for the Becket Fund for Religious Liberty. He was in the news in January 2020 for an opinion in which he refused to refer to a transgender inmate by her preferred female pronouns. (Law360, Fox News, the New York Times)

  • Judge Andrew S. Oldham, the 5th Circuit at New Orleans. He is former general counsel for Republican Texas Gov. Greg Abbot. (Law360, Fox News)

  • Judge James C. Ho, the 5th Circuit at New Orleans. He is a former Texas solicitor general. In 2022, he said he won’t be hiring future Yale Law School grads as clerks because the university cancels conservative views. (Law360, Fox News, the New York Times, Bloomberg Law)

  • Judge Amul Thapar, the 6th Circuit at Cincinnati. He is a former Williams & Connolly lawyer. He has suggested that conservatives withhold donations to law schools that don’t teach originalism. (Law360, Fox News, Bloomberg Law)

  • Judge Joan Larsen, the 6th Circuit at Cincinnati. She was formerly a Michigan Supreme Court justice. (Fox News)

  • Judge Gregory G. Katsas, the U.S. Court of Appeals for the District of Columbia Circuit. He is a former Jones Day lawyer and a former deputy counsel in the Trump White House. (Law360, Fox News)

  • Judge Neomi Rao, the D.C. Circuit. She was the administrator for the Office of Information and Regulatory Affairs in the Trump administration. (Fox News, Bloomberg Law)

  • Judge Lawrence VanDyke, the 9th Circuit at San Francisco. He is a former Gibson, Dunn & Crutcher lawyer and a former solicitor general in Nevada and Montana. He received a “not qualified” rating by the ABA Standing Committee on the Federal Judiciary, which cited an “entitlement temperament.” (Law360, Fox News, the New York Times)

  • Judge Patrick Bumatay, the 9th Circuit at San Francisco. He was the first openly gay judge to serve on the 9th Circuit. (Bloomberg Law)

  • Judge Kenneth Lee, the 9th Circuit at San Francisco. He wrote an opinion finding that a ban on gun advertising that appeals to minors was likely unconstitutional. (Bloomberg Law)

  • Judge Barbara Lagoa, the 11th Circuit at Atlanta. She is a former Florida Supreme Court justice and former Greenberg Traurig lawyer. (Fox News)

  • Judge Britt Grant, the 11th Circuit at Atlanta. She is a former Georgia Supreme Court justice. (Fox News)

  • Judge Kevin Newsom, the 11th Circuit at Atlanta. He was formerly the Alabama solicitor general. (Fox News)

  • Judge Michael Park, the 2nd Circuit at New York. He formerly was a lawyer at Wilmer Cutler Pickering Hale and Dorr; Dechert; and Consovoy McCarthy Park. (Bloomberg Law)

  • Judge David Stras, the 8th Circuit St. Louis. He is a former Minnesota Supreme Court justice. (Fox News)

  • Judge Allison Jones Rushing, the 4th Circuit at Richmond, Virginia. She was a Williams & Connolly lawyer. (Fox News)

  • Kate Comerford Todd, a former deputy counsel in the Trump White House. (Fox News)

  • U.S. District Judge Aileen M. Cannon, the Southern District of Florida. She dismissed the classified documents case against Trump. (Law360)

  • U.S. District Judge Patrick Wyrick, the Western District of Oklahoma. He was formerly an Oklahoma Supreme Court justice. (Fox News)

  • Kristen Waggoner, CEO and general counsel at Alliance Defending Freedom. (Law360, Fox News, the New York Times)

  • Republican U.S. Sen. Tom Cotton of Arkansas. (Fox News)

  • Republican Sen. Mike Lee of Utah. (Fox News)

  • Morse Tan, the former dean of the Liberty University School of Law, who is now the senior executive director of Liberty University’s Center for Law & Government. (Bloomberg Law, the New York Times)

  • Former North Carolina Supreme Court Chief Justice Mark Martin, founding dean of High Point University’s law school. (The New York Times)

Confirmation of Trump’s judicial nominees will be easier when Republicans take control of the U.S. Senate, Law360 reports.

Republican Sen. Charles Grassley of Iowa intends to reclaim his position as chair of the Senate Judiciary Committee that will consider Trump’s choices, a Grassley spokesperson told Law360.

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Judiciary

Conservative faction pushes judge nominees who are ‘even more bold and more conservative’

By Debra Cassens Weiss

October 15, 2024, 10:02 am CDT

Former President Donald Trump has broken with leaders of the conservative Federalist Society, who failed to voice their support when he tried to overturn the 2020 election and when prosecutors charged him with crimes.

Instead, the Wall Street Journal reports, Trump “has gravitated to more-combative lawyers outside the conservative legal establishment who have said they want to hobble regulatory agencies and concentrate power in the White House.”

These lawyers are part of a rising conservative faction that includes America First Legal, a conservative legal group founded by nonlawyer and former Trump adviser Stephen Miller to combat “the left’s radical and lawless agenda.”

One Republican legal activist pushing for pro-Trump judicial nominees is Mike Davis, according to the Wall Street Journal. Future nominees must be “even more bold and more conservative and more fearless” than those appointed in Trump’s first term, Davis said.

Davis likes judges following the model of conservatives on the 5th U.S. Circuit Court of Appeals at New Orleans. The Wall Street Journal described the appeals court as “a hothouse of conservative jurisprudence under the influence of some of the brashest and most aggressive first-term Trump appointees.”

The up-and-coming conservative faction wants to see Trump appoint more judges like U.S. District Judge Aileen Cannon of the Southern District of Florida, who dismissed the classified documents case against Trump, according to the article. She was mentioned as one of the “up-and-comers to watch” by former White House counsel Donald McGahn during a September conference.

Hat tip to the Volokh Conspiracy.

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3. Should Justice Sotomayor retire? Chemerinsky,…

U.S. Supreme Court

Should Justice Sotomayor retire? Chemerinsky, White House haven’t joined calls for her to step down

By Debra Cassens Weiss

April 4, 2024, 1:23 pm CDT

Paul Campos, a professor at the University of Colorado Law School, is among the commentators who are calling for 69-year-old Justice Sonia Sotomayor to retire from the U.S. Supreme Court.

Sotomayor, the oldest Democratic appointee on the high court, has Type 1 diabetes. Campos would like to give President Joe Biden a chance to name her replacement while Democrats control the U.S. Senate.

“You have the votes right now, and you’re not going to have the votes a year from now,” Campos told HuffPost. “It’s really that simple.”

The fear is that history could repeat itself. Then-Justice Ruth Bader Ginsburg resisted calls to step down, and she died at age 87 while then-President Donald Trump was in the White House. She was replaced by now-Justice Amy Coney Barrett, giving the Supreme Court a 6-3 conservative majority.

If a Sotomayor replacement gives conservatives a 7-2 Supreme Court majority, “you go from a captured court to a full MAGA court,” Democratic Sen. Sheldon Whitehouse of Rhode Island told NBC News.

“Certainly, I think if Justice Ginsburg had it to do over again, she might have rethought her confidence in her own health,” said Whitehouse, who nonetheless is not joining calls for Sotomayor to step down.

Another legal academic, Erwin Chemerinsky, the dean of the University of California at Berkeley School of Law and an ABA Journal contributor, had called on Ginsburg to retire. But he does not think that Sotomayor has to do so, according to HuffPost and NBC News. He noted that Sotomayor is only 69, while Ginsburg was in her 80s.

He is also concerned that a progressive nominee to replace Sotomayor might not get confirmed because of the “slim Democratic majority” in the Senate.

The White House is also taking a hands-off approach, Law360 reports.

White House press secretary Karine Jean-Pierre said at a press conference Wednesday a decision on retirement is “a personal decision,” and justices should be given the “space and freedom” to decide.

Campos said some Democrats wonder why it’s necessary to replace Sotomayor with a liberal nominee when conservatives have a six-person majority on the court.

“That’s like asking, ‘What does it matter to give up another touchdown in the second quarter when we’re already down 14 points?’” Campos said. “At some point, you have to make your comeback.”