Judge James Ho on "The Importance of a Diverse Federal Judiciary"

"It would be profoundly offensive—and un-American—to tell the world that you’re restricting a judgeship to members of only one race."

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On Thursday, the House Judiciary Committee held a hearing, titled "The Importance of a Diverse Federal Judiciary." Several judges were invited to speak. I'd like to flag the testimony of Judge James Ho of the Fifth Circuit. He articulated a perspective on this issue that is seldom heard. And you can watch Judge Ho deliver the remarks, starting at 34:30:

My remarks today are akin to what judges call "concurring in the judgment." We agree on certain core principles, but I'd like to offer my own reasoning.

Equality of opportunity is fundamental to who we are, and to who we aspire to be, as a nation.1 To my mind, that means two things: It means we must do everything we can to ensure that everyone truly has the opportunity to succeed. And it means we must never bend the rules to favor anyone. Dr. King had it right: Choose people based on who they are—not what they look like.

Let me begin by explaining how I began. 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. It's why I was honored to serve as co-chair of the Judiciary Committee of the National Asian Pacific American Bar Association. It's why I love talking to young lawyers and law students of every race and ideological stripe. It's why I always say that, if anyone is willing to forgo other opportunities in order to enter public service, call me. I'll take them to lunch and share what I know.

But here's the kicker: Once everyone has had full and fair opportunity to be considered, you pick on the merits. Both the Constitution and the Civil Rights Act make clear that it is wrong to hire people based on race.2

That's the law for a wide range of jobs. But it would be especially wrong to select judges based on race.

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.

I don't say this because I think race is no longer an issue in our country. I've received racist hate mail and racially disparaging remarks because of positions I've taken in my career. I've been treated differently because of who I'm married to. And I also remember, back in high school, my college admissions adviser telling me that my grades, SAT scores, and activities were all strong enough to get me into my top choice of schools—if I wasn't Asian. 

Now, I'm not saying any of this here to complain. Whatever negative experiences I've had, they pale in comparison to my many blessings living in this great country. I was not born an American. But I thank God every day that I will die an American. 

My point is just that I don't come to my views because I think racism is behind us. Rather, I come to my views precisely because racism is not behind us. The last thing we should do is divide people by race. The last thing we should do is suggest that the racists are right. We don't achieve equality of opportunity by denying it to anyone—we achieve it by securing it for everyone. 

So make no mistake: 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. 

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. Thank you. 

Judge Ho extolled "equality of opportunity," and rejected the notion that a member of a minority group could reach a "better conclusion than a white judge."  These remarks would get him cancelled at an anti-racist law school. Fortunately, Judge Ho has life tenure.

During the hearing, Rep. Ted Liu complained that there were no Asian-Americans on the Supreme Court. Might I suggest Judge Ho? Judge Thapar? Judge Bumatay? Judge Rao? Judge Park? Alas, I doubt Rep. Liu would accept these fine jurists.

NEXT: Crespo and Kerr on Torres v. Madrid

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  1. Beavis and Butthead just filed a complaint that they find the judge’s name triggering.

    https://www.youtube.com/watch?v=mDqsgbtpDLk

  2. So I guess MLK was wrong and not only does skin color matter its the only thing that does. Well that and what genitalia you have and who you like to bang.

    1. It’s obviously very important to you.

      1. It also seems to be important to those curating the content of this blog.

      2. Your side is the one with the Congressional committees and the institutes and college majors dedicated to this stuff and you are implying I’m the one who is fixated on this nonsense? Lol

        1. Me and “my side” are not the same thing.

          1. I argue for and support leftists all the time but don’t you dare call me a leftist!

            1. You’re assuming leftism is a monolithic unity in which everyone agrees about everything.

              That said, the people trying to fix racism are not the true racists, any more than the doctors trying to cure disease are the ones making us sick.

            2. Also, a question. Suppose you woke up tomorrow to find that by some bizarre circumstance, the federal judiciary was now 100% minority. Would you consider that a positive development, a negative development, or neutral? (Suppose further that it didn’t happen by plan, by some bizarre circumstance it just happened to work out that way.)

              And when you answer, please keep in mind that for many years, that was the mirror-image experience of minorities: The judiciary was entirely whites, and, before Harry Truman, entire white males. Should they have considered that to be a positive thing, a negative, thing, or neutral.

            3. “I argue for and support leftists all the time but don’t you dare call me a leftist!”

              You, and many other followers of this White, male, right-wing blog, argue for and support bigots — racists, gay-bashers, xenophobes — all the time. Dare you be called bigots?

              Spoiler: You will be called bigots, because political correctness is no reason to refrain from calling a bigot a bigot.

  3. Interesting article in Thursday’s NY Post about how Biden really doesn’t have the votes in Congress to really do — anything.
    How, unlike LBJ & FDR, he does not have a mandate.

    The fact that there are people like Judge Ho gives me hope for the future of the republic.

      1. Mr. Biden is not getting a deal with Iran, because Iran does not want one now and the headwind is strong even in the US.
        If he seriously wanted a deal (or a science-based energy policy) he would have appointed Prof. Moniz as the Sec of Energy

  4. All people who passed 1L should be excluded from all benches. Separate judge schools are needed. They should have two tears of study. The main point should be, aplly the law. Do not make the law. Older, mature people should apply. Judge under supervision the third year of school. Get a revocable license. Have liability insurance for damages from deviations from professional standards. Lose such coverage after a lot of tortious mistakes. People who believe in torts should support that. Sovereign immunity has a psychotic justification, that the sovereign speaks with voice of God. Lawyers are delusional.

    Judges should investigate. They shoild have outstanding investigators, from the police, not lawyers, and a budget. Appeals should review facts, not just nitpicky errors of law.

    Judging sucks today. Judges are hated for their arrogance, their stupidity, their error rate, their inability to comply withe plain language of the constitution. .They suck.

    1. Get. Help. Now…

      1. I’m with you, and as for Daivd’s likely response: I have not passed 1L.

        DB, you need some help with anger management towards lawyers.

        1. How about an argunent of fact, of law, of logic, insread of personal insults?

          1. Yo mean like facts, law and logic like “Judges are hated for their arrogance, their stupidity, their error rate, their inability to comply withe plain language of the constitution. .They suck.”?

            1. Those are facts, points of law, and terms of art.

  5. A fitting sentiment to be expressed at an odds-defyingly White, archaically male blog in modern America.

    1. Artie, you are being misled by the tech billionaire media. You are naive like a child. You don’t know much. This will be a white nation into the far future. Thus the data imply. Sorry, race whores.

      This is why immigrants are risking their lives to come. Who would do that to get to a failed shithole country? Name a successful jurisdiction run by those people. Money is not everything. Define success any way you want. There is none.

  6. He sounds like a good guy.

    Note how distinct his message is from the pious woke-religionists:
    – No posturing.
    – No celebration of grievances.
    – No finger-pointing.
    – No America-bashing.
    – No vanity and self-congratulation.
    – Talks about right and wrong instead of schemes and tactics and agendas.
    – A clear message that racial discrimination is wrong.
    – Positivity.

    I hope more people can recognize the value of being more like Judge Ho and perhaps decide to put aside their grievances and schemes. Help people instead of always looking for a way to destroy and tear down America and punish Americans.

    1. This judge has devoted his public life to making common cause with vote suppressors, White nationalists, gay-bashers, misogynists, racists, grievance-consumed clingers, militia-class gun nuts, and the like. He accepted the rewards offered by conservatives for that service in a series of taxpayer-funded positions.

      America has rejected Judge Ho’s obsolete thinking and he will be scant part of the shaping of America’s continuing progress. He will continue to be provided a prominent seat at Federalist Society events, however.

      1. ^ everyone note the difference.

        Do you want positive people like Judge Ho around you, or low, hateful people like the Rev?

        1. Judge Ho hates American progress — his strident rants about abortion, guns, and other wedge issues are known for their belligerence. He will become increasingly negative as America continues to improves against his wishes and efforts.

          Me? I like America’s continuing progress.

          America prefers my thinking and has rejected Judge Ho’s positions for so long as either of us has been alive. In modern America, Judge Ho is the malcontent.

          1. ^ leftist thought perfectly illustrated

            Everyone look. These are the choices: hateful leftist negativity versus Judge Ho’s positive and optimistic commitment to justice.

            1. Being sure you wish to align with racist vote suppressors, Republican gay-bashers, and conservative xenophobes is the type of positivity America no longer chooses. Judge Ho is and will continue to be just another disaffected culture war casualty.

              Or, Ben, are you convinced conservatives have reversed the cultural and political tide in America?

              1. Artie. No tide. You are misled by the media. Travel 50 miles from the oceans. Nothing has changed.

        2. Judge Ho is a bad guy who once went out of his way to write a dickish opinion explaining why he wouldn’t use someone’s preferred pronoun. If you can’t manage basic respect for the litigants in front of you, you shouldn’t be a judge. And you are probably a bad guy.

          1. No one has to say the words you demand they say. No amount of bullying people requires anyone to speak any specific way.

            Thanks for showing everyone what your priorities are though: bullying people about pronouns and finger-pointing and creating problems where none existed before.

            1. A few thoughts:

              You raise bullying. What is more a form of bullying? A request from a prisoner, who has nothing but their name, to be addressed a certain way or a powerful judge going out of their way to deny them that basic respect? I’ll answer it for you. The person who can’t be chuffed to respect the litigant in front of him is the bully. The person who memorializes that disrespect in a published opinion for all to see is the bully. The person with power going out of their way to denigrate someone without it is a bully.

              If you were in court and you asked to be called Ben or Mr. so and so or He. And the judge decided to call you Britney, Miss, and She instead, should they be respecting you? Wouldn’t they be the bully? Again I’ll answer if for you: yes they would.

              You’re right that no one HAS to say anything. Just like no one HAS to go out of their way to demean people. Judge Ho did. It reflects poorly on him.

              But when you don’t accord people basic dignity and respect, it reflects extremely poorly on your character.

              1. Pronoun police don’t accord their targets with dignity or respect.

                Bullying people to try to force a specific mode of speech is not respectful and denies the speaker his rightful human dignity to communicate meaningfully.

                If you won’t respect Judge Ho’s communication choices, why should anyone respect yours? Or anyones’?

                I’m glad to hear bullies and speech police don’t approve of me. And doubly glad to share that status with Judge Ho. I couldn’t ask for better company or a better contrast, with you and the Rev on one side and me and Judge Ho on the other.

                1. Open wider, Ben.

                  And continue to try to ignore the speech police serving on the Volokh Conspiracy Board of Censors.

                  1. “Open wider, Ben.”

                    You have a very sexist view of progress, Arthur.

                2. Dude. You have no fucking clue what bullying and respect are about. I’m going to have to assume you were a middle school bully.

                  1. You are free to make up whatever dumb stories you want. Why stop now?

                    Speech police are bullies. Period.

                    1. You’re making up a new concept of bullying where the powerful judge who goes out of his way to denigrate someone is the victim of a litigant’s bullying by being asked to be called by their name.

                      Next you’re going to tell me that Thích Nhất Hạnh is a bully by calling for peace and mindfulness.

                    2. Litigant isn’t trying to police pronoun usage. You are.

                    3. The litigant was requesting to be referred to by their name and pronouns! That’s what we’ve been discussing!

                      And I’m bullying anyone! Is judge Ho here? No. He’s got life tenure on the Fifth Circuit, he’s fine. I’m CRITICIZING his character and fitness as a judge. I am CRITICIZING him for going out of his way to disrespect a powerless litigant in front of him. I am CRITICIZING him for being a bully who is unable to accord basic respect to parties before the court.

                      Just like I am CRITICIZING you for lacking a concept of basic respect for others. A concept which you, Ben (the name you would like to go by and not some other name I have decided is more appropriate), are having difficulty understanding overall.

                      Seriously: if someone called you by your wrong name, or he’ll even mispronounced, are you a bully for correcting them? Would they be a bully if they published an op-Ed calling you by your wrong name and told everyone to call you something else?

                    4. *Not bullying

                    5. We should respect your justification for speech-policing more than you respect the Judge’s choices for how he will communicate? No.

                      You seem comfortable making up stories about people you don’t know. That’s hardly respectful or respectable. Is it something a bully might do? Yes.

                      Is creating a problem where none existed before something a bully might do? Yes.

                      Do bullies mind their own business? Not usually. Do you mind your own business? Not this time.

                      Whatever though. I’m sure you’re the hero of whatever story you’re making up to justify yourself.

                    6. You are free to make up whatever dumb stories you want. Why stop now?

                      Deflecting without denying. Classic troll technique, admitting the truth of what’s been asserted.

                    7. Ben_

                      “Do you mind your own business? Not this time.”

                      You and and I are both commenting on a public post about Judge Ho. Therefore we are minding our business the exact same amount.

                      “Is creating a problem where none existed before something a bully might do? Yes.”

                      Exactly what Judge Ho did! Call be my name” isn’t creating a problem. Writing an opinion about why you won’t sure is.

                      “We should respect your justification for speech-policing more than you respect the Judge’s choices for how he will communicate? No.”

                      Why? Why shouldn’t we? You don’t have a good reason do you, other than Judge Ho is on your team. But you damn sure wouldn’t be happy if someone did it to you, would you?

                      “ You seem comfortable making up stories about people you don’t know. That’s hardly respectful or respectable. Is it something a bully might do? Yes.”

                      You’re right. Maybe I shouldn’t have done that. But there’s got to be a reason that you’re siding with the powerful over the powerless right? What it is?

                3. The problem with respecting Judge Ho’s communication choices is that its idea of respect is one way. Go into Ho’s courtroom and address it as “My Lady” or “Judge Dumbfuck” or anything else but the form of address that it demands and see what happens.

              2. “You raise bullying. What is more a form of bullying? A request from a prisoner, who has nothing but their name, to be addressed a certain way or a powerful judge going out of their way to deny them that basic respect?”

                Neither is bullying. Respecting someone doesn’t mean doing everything they ask. Attempting to compel someone to use a pronoun or name that they don’t think is applicable, however, is bullying.

                1. “Attempting to compel someone to use a pronoun or name that they don’t think is applicable, however, is bullying.”

                  So, when courts demand that participants refrain from contempt, it’s bullying? Try addressing the judge as “Your Itship” sometime and find out what happens when you don’t respect the judge’s choices. Appear before the Supreme Court and call Thomas “Justice Tom” and see what happens.

                2. How was anyone compelled to do anything? They were requested. And the court went out of its way to make a self-indulgent opinion about why it didn’t want to. That’s bullying.

                  Seriously. Think back to middle school. If someone kept calling you a name you didn’t want to be called, and told everyone you should be called that, even though you asked them not to, who is the bully in that situation?

                  1. “How was anyone compelled to do anything?”

                    Correct. No one was being bullied in this scenario.

                    “If someone kept calling you a name you didn’t want to be called, and told everyone you should be called that, even though you asked them not to, who is the bully in that situation?”

                    It certainly depends on the name, and the situation. If a teacher insisted on calling me by my first name after I asked to be addressed by “Mr.” and my last name, I don’t think the teacher would be a bully.

                  2. It seems quite reasonable that until a person legally changes his/her name and formally changes the sex on their official documents, it is completely proper for a court to use the official name and its pronoun in standards English.

                    I cannot insist to Judge Ho that you refer to me as Your Holiness, however, much I insist and however clearly my psychiatrist writes that in a letter to the Court.

                    The English usage is one in which it should acceptable for a judge to use standard practice rather than woketalk. If s/he wants to use woketalk, fine with me. If s/he wasnt Standard English consistent with legal sex status, that is also good.

                3. “So, when courts demand that participants refrain from contempt, it’s bullying?”

                  Sigh. No, not in that specific situation. But outside of court, attempting to enforce similar protocols using similar methods would generally be considered bullying, don’t you agree?

              3. A request from a prisoner, who has nothing but their name, to be addressed a certain way or a powerful judge going out of their way to deny them that basic respect?

                Did the prisoner ever make such a request? I didn’t see anything in PACER (although there are quite a few pro se filings). The docket refers to the plaintiff as “Mr. Scott Gibson” and the appellee’s briefing uses male pronouns, so it’s not like Judge Ho’s opinion came out of nowhere

                For what it’s worth, this is the sentence that purportedly disqualifies Judge Ho from judicial service:

                We use male pronouns, consistent with TDCJ policy—which Gibson does not appear to challenge. Tex. Dep’t of Criminal Justice, OFFENDER INFORMATION DETAILS: SCOTT LYNN GIBSON, https://offender.tdcj.texas.gov/OffenderSearch/offenderDetail.action?sid=05374437 (last visited Mar. 29, 2019) (listing Gibson as male and assigning him to male-only prison facility).

                1. Yeah. He’s a dick. There was no reason the court is bound by the policy.

                  1. Calling strangers “dicks” because you disagree with them is a lot less civil than using a pronoun someone doesn’t like.

                    1. He’s not a stranger. He’s a public figure disrespecting a litigant before his court. That’s something a dick would do.

                    2. If you think behaviour is dickish you are less likely to agree with it, yes.

            2. Ben – The judge address the litigant by his proper legal name. Lawtalking guy somehow things its inappropriate to use the correct legal names and to be factually accurate when writing a legal court binding opinion. Seems the Lawtalking guy missed the footnote, that the litigant did not object to the use of his correct legal name.

          2. Is Scott Lynn Gibson….under the law…regarded as a man or a woman? For instance, is he being held in a men’s prison? How was that legally determined? Does he or does he not have a Y-chromosome? I’m not quite sure why Judge Ho should feel compelled to side with or enable Gibson’s gender dysphoria. Also, Gibson is not owed a sex change operation by the state….who is holding him first for aggravated robbery….then while in custody for murder and deadly assault on a corrections officer. Sounds like a great guy…or is it gal….that needs to be coddled during official legal proceedings. Maybe Gibson should instead focus on following the law

          3. He used his correct legal name in the opinion instead of his alias. Since when is using the litigants correct legal name in the court opinion and other legal documents improper.

          4. The wrong pronoun by force is denial of reality. All deniers are anti-Semites. Artie is a Commie denier using fake surveys.

        3. I want conservative but well-spoken people like Ho and boring and jerk-ish but liberal people like Kirkland around me.

          In contrast, morons like you, Ben, have no redeeming value.

          1. Fine, I doubt that Ben wants to be around you anyway.

          2. …liberal people like Kirkland…

            Kirkland is the most hateful, bigoted, intolerant person I’ve ever encountered. But I guess that’s what “liberals” are like these days…

      2. Kirkland, note Ho’s position on Birthright Citizenship.

        I think that he’s wrong as the 14th Amendment didn’t make Indians born here citizens (subsequent Federal law did), but…

        1. So, Ho is correct on birthright citizenship (what’s with the upper case? is that a Dr. thing?). Blind hogs and all that. Very few people with a lick of sense disagree with him. I suppose it’s possible that someone who is not a dolt disagrees, but I’ve never encountered, nor heard of, such a person.

      3. Of course RAK you have studied Judge Ho’s judicial record in detail.
        Rather that your usual screed, how about FACTS for a change.

      4. “This judge has devoted his public life to making common cause with vote suppressors, White nationalists, gay-bashers, misogynists, racists, grievance-consumed clingers, militia-class gun nuts, and the like.”

        Could you repeat that sir?

        1. What’s the matter, got your elbow in your ear?

          1. Took me awhile to find a pencil.

    2. Talks about right and wrong instead of schemes and tactics and agendas.

      The Left’s ethics are highly situational.
      https://conservapedia.com/Situational_ethics

  7. Science-denying reactionaries continue to pretend that the human species has races.

    1. Race is a made-up thing, like religion, money and the MCU.

      1. And non-delegation doctrine.

  8. Agree choose the best person. Which in reality affirms diversity means nothing. It’s a useless attribnute.

    In todays world the “woke’s” meaning of diversity is something that is not Black enough. The whole Asian unity thing is just a fleeting moment. We’ll continue ignoring the black on Asian violence which is the true problem.

    For example, every year the NFL has a little controversy that every vacant coaching position isn’t filled with a black guy.

    No controversy though about the lack of diversity of the players roster. Similarly the NHL has to periodically inject their commitment to more black players. But no such commitment to white players in the NBA.

    Its not really about diversity.

  9. Hard to take you seriously when you refuse to admit that under your standards the Clarence Thomas appointment was a mistake.

    1. I’d say the same about Sotomayor who is just as much an ideologue as Thomas

      1. Did you read the post? It’s about putting people on the Court solely on the basis of race. It’s not about ideology.

        I’ve been in front of Sotomayor twice (once in the District Court and once in the Second Circuit). Fingertip knowledge of the case, unbiased, and asked probing questions of both sides. 180 degrees from Thomas.

        1. “180 degrees from Thomas.”

          Thomas seems pretty sharp to me. You think there’s just something about him, eh?

          1. Yeah, and it has nothing to do with intelligence nor with his race. He’s a blinkered idealogue bearing a grudge.

            1. Justice Uncle Thomas´ membership on the Court has everything to do with race. President Bush I needed a black to succeed Justice Thurgood Marshall, and then-Judge Thomas was the most prominent black Republican toady available. It is noteworthy that Thomas did not receive a scintilla of consideration when Justice Brennan retired the year before.

              1. “Justice Uncle Thomas´ membership…”

                Lol. Racial slurs, eh? Proving once again that the left are the real racists.

                1. Racial slurs, eh?

                  Who are you trying to kid? The regular publication of vile racial slurs is what you — and many fans of this White, male, right-wing blog — like best about the Volokh Conspirators and its proprietor(s). This blog is a safe space for those who miss the everyday use of a vile racial slur in modern America.

        2. I did not realize that you were making a racist comment about Thomas, but rather one about his competence.

          1. I don’t mind saying that Thomas is mediocre and unqualified. That’s the cynical reason why George HW Bush appointed him. My opinion is shared not only by Bush but by Rehnquist and Roberts, who have never trusted him with writing an important decision. Even after all this time he acts as if Constitutional precedent has been sprung upon him as a complete surprise.

        3. BTW, did you read the article, Sotomayor likes to advertise that she is a person of color

        4. Cap,
          Have you ever appeared before Thomas? Under what circumstances?

        5. captcrisis
          March.27.2021 at 2:55 pm
          “I’ve been in front of Sotomayor twice (once in the District Court and once in the Second Circuit). Fingertip knowledge of the case, unbiased, and asked probing questions of both sides.”

          So you got a fair hearing in front of Sotomayor, unlike the firefighters in Ricci

          Sotomayer was the one that wrote the dissent in Shuttee holding that it was unconstitutional for the people of the state of Michigan to approve a state constitutional amendment requiring compliance of the 14th amendment of the US Constitution.
          Yep – two prime examples of Sotomayer’s unbiased commitment to equal rights for all.

  10. If he was born in 1973, he learned English from tho *original* Sesame Street and not its new “woke” incarnation.

    1. Good point, so it’s not his fault if he became a bigoted clinger.

  11. Cool how you’re ignoring the overall lack of diversity in Trump’s judicial appointments.

    1. Ben Carson? Elaine Chao? But you’re right, not a single Inuit American.

      Not ignoring so much as considering it unimportant.

      1. Carson: token black. Everyone admitted he was unqualified, including Carson himself. To Trump all black men are servants.

        Chao: wife of Mitch McConnell, her corruption was predictable. Used her position to help her family shipping business.

        1. When you find yourself referring to a brain surgeon as “unqualified” and a “token black,” you may want to ask yourself, how would you react to a right-wing clinger who employed such rhetoric in a comparable context?

          As for Chao, are you invoking the content of her character? This implies there are more important things than skin color.

          1. “When you find yourself referring to a brain surgeon as “unqualified” and a “token black” ”

            A person qualified to perform brain surgery is not necessarily qualified for every position imaginable, although I would expect a bigoted right-wing rube to use that silly assertion in trying to defend the Trump diversity record at a White, male blog.

            1. I was just trying to imagine what your ilk would say if a right-winger referred to a black brain surgeon as an unqualified token black in *any* context.

              1. A black person who is an expert in his field is such a surprising idea to you that you assume he must be an expert in every field. But no.

                1. You’re sensing racism…it must be coming from some guy on the Internet, where else could it be coming from?

                  The problem is, you sense racism wherever you go.

                2. I expect that a black male who grew up in Detroit might be more sensitive about about problems of the inner city than you are.

                3. A stupid and insulting comment. What I have come to expect from you.

            2. RAK, you ooze bigotry at every turn.

            3. “although I would expect a bigoted right-wing rube to use that silly assertion in trying to defend the Trump diversity record at a White, male blog.”

              Speaking of diversity, what do you think of the fact that Justice Barret has more black children than Justice Ginsburg had black law clerks?

          2. The choice of Carson, an accomplished brain surgeon but a presidential candidate failure with no apparent interest or experience in managing government bureaucracies, to head the HUD, was hard to justify by just about any metric. Why not Secretary of State or Department of Justice? It can’t have anything to do with the perception of the HUD as primarily an agency that serves Black and poor communities, could it?

            The pick of Chao for DOT shows, indeed, that Trump was willing to look beyond race in order to serve his deeper interests in buying loyalty through corruption.

            1. Simon,
              Let’s be honest. Such appointments like ambassadorships often have little to do with previous experience and much to do with the repayment of political favors.
              Why else appoint Ms Granholm as Sec of Energy, when a highly experience candidate was eager to resume that post. What were his qualifications? Being the best leader of DOE since the Department was formed.

        2. Carson has more brains than you, has accomplished more, has demonstrated more compassion and more humility than you.
          So who are you to talk?

          1. It’s not very humble to take a job for which you don’t have any experience whatsoever.

            1. As if Gov. Granholm actually knows anything about energy technology, or science, or nuclear weapons.

              1. As a two-term governor of a populous state who spent 8 years putting green energy into practice, she is a qualified and appropriate choice.

                1. Far from it buddy. She is a politician, not an energy scientist. She knows nothing aboutr science policy for the largest supporter of research in the physical and energy sciences She knows NOTHING about the largest part of DOE, the NNSA.
                  Get your head out of your partisan ass.

                  1. Does the Secretary of Defense know how to operate a Black Hawk helicopter?
                    Does the Secretary of Transportation know how to shift into “creeping gear” in an 18 wheeler?
                    Does Don Nico how to be a grownup without resorting to juvenile insults?

                  2. She has more business heading the DOE than Carson had, with the HUD.

                    Most of the other cabinet members under Trump at least had some experience in the industries they would seek to enrich by mismanaging their respective agencies. But treating HUD like some plum appointment to hand to some incompetent also-ran just shows how deep the racism runs in Trump’s addled brain.

                  3. She doesn’t have any special subject matter experience, but at least as a former governor she has significant administrative experience. Carson… not so much. He had neither subject matter experience nor administrative experience. Had he ever run an organization bigger than, perhaps, a hospital department? Not exactly preparation for running a cabinet department with 8,000 employees and a $30B budget.

            2. LawTalkingGuy
              March.27.2021 at 3:01 pm
              It’s not very humble to take a job for which you don’t have any experience whatsoever.

              You mean like Hunter biden taking job with Burisma?

              1. If your point is that Hunter Biden is probably as big a jerk as Ben Carson is, I’m probably with you.

          2. “Carson has more brains than you, has accomplished more, has demonstrated more compassion and more humility than you.
            So who are you to talk?”

            First, Carson is not qualified to play shortstop for the Dodgers, Pirates, or Nationals, despite his achievements in other fields.

            Second, Carson voluntarily became — and remained — an unqualified, unaccomplished stooge for a vainglorious, vulgar, incompetent, meanspirited, failed president. That indicates deficiency in character and judgment. That point is amplified by the manner in which he used his influence with that president in the service of an ugly pardon.

            He appears to be a skilled surgeon with deficient character.

      2. GKHoffman neither of those were judicial appointments.

      3. 1. Not judicial appointments.
        2. You can name 2 out of all his cabinet appointments lol. One of which was Mitch’s wife, and other had zero housing policy or other government experience.

        1. Ha, beat you by one minute!

  12. You’re an idiot, Josh, and a crank, if you genuinely believe that any “woke” law school would “cancel” Ho for speaking honestly about his experience as an Asian-American immigrant and how he thinks about diversity in the judiciary. This kind of opinion belongs on FoxNews, but it sullies the VC.

    Unlike you, Josh, Ho does not need to rely on obfuscation, equivocation, or whiny pleas of victimization to make his point. So, it is easy to see how he misunderstands and mischaracterizes the goal of promoting diversity in the judiciary. We do not want to see more diversity in the judiciary because we believe, for some reason, that a Black judge categorically would author a better opinion, or reach a better result, than a white judge. Why would anyone believe that? It’s absurd, on its face.

    We want more diversity in the judiciary (and our other political branches) for the following reasons:

    If there is truly equal opportunity, then the composition of the judiciary should accurately reflect the diversity of the nation. Thus, if the judiciary is not sufficiently diverse, we know that there is a problem on the opportunity side, and continued attention on the lack of diversity helps us to understand what the problem is likely to be (and how best to solve it).

    An emphasis on diversity helps to ensure you’re picking the best and brightest for the judiciary. If you’re just appointing judges that can “play the part,” in the mind of a moronic and catastrophically disengaged former president, you are necessarily going to miss out on the broader pool of potential choices that would have been better judges. When your entire judiciary looks like Gorsuchs, you’re sure to be missing out on the Barretts. So you need to go out and look for them.

    We don’t fully know what difference diversity in the judiciary could make. Law professors and conservative jurists flatter themselves when they pretend that law is an objective discipline that ought to proceed and develop a particular way without respect to the personal lives of the judges who hear cases – so a “diverse” judicial branch shouldn’t make a difference. Not only is that clearly false, the belief in itself takes for granted a particular view of what the law should be. It treats as fundamental a kind of rudimentary legal positivism – developed, again, by generations of white, male legal scholars and jurists – that is itself not even all that old but certainly dismissive of contrary points of view that see how that legal philosophy has continually harmed anyone who does not have the power to correct judicial missteps through political means (and guess who those people are).

    The only way to know whether a fully diverse judiciary, filled with women, Black, and POCs, would accept that same judicial philosophy and role is to, well, create that judiciary, and see what results. If it turns out that they reject that judicial philosophy, then we will see how sorely diversity was needed. If it turns out that they accept it fully, then we will see how diversity truly wasn’t that big of a deal, but at least we’ve corrected for the “equality of opportunity” problem. Win-win.

    Ho may have his own perspective on this, but at the end of the day he is simply mistaken on the nature of the problem we need to solve.

    1. “If there is truly equal opportunity, then the composition of the judiciary should accurately reflect the diversity of the nation.”

      Because?

      1. Because he says so. That is the usual reason.

        1. Bigots prefer bigoted policies.

          Modern America prefers that our vestigial bigots get stomped into cultural irrelevance.

          I am content.

      2. Because… that is what equal opportunity means?

        Isn’t this fundamental to the anti-AA, “merit”-ocratic, “equal opportunity” camp? Focus on merit and opportunity, and any “problems” with diversity will vanish?

        If you mean to suggest that non-white and non-male candidates are simply not good enough, even given equal opportunity to succeed, you are more than welcome to embrace that particular horn.

        1. Equal opportunity equals equal outcome. Got it! And you’re full of shit.

          1. I believe that similarly-situated populations, when presented with the same opportunities and circumstances, should perform in similar ways, yes. Is that not fundamental to the anti-AA, etc., point of view? Isn’t that how the fat white racists who call themselves “libertarians” try to justify letting “the market” sort things out?

            If we do not see more or less “equal outcomes,” the question is exactly why not. I am not necessarily going to reach for the “systemic racism” lever, but an explanation is required. If populations are not similarly situated, then the question is, why not? If they are similarly situated but do not perform similarly, again the question is, why not? And as we produce answers to those questions, they will lead us along the path of inquiry until we can devise some kind of solution to whatever the core problem seems to be. Or – and I’m open to this possibility – we’ll have established that there is no particular “problem,” per se, and so no “solution” is required.

            Either way, more is required than lazy hand-waving at the phenomenon and grievance politics.

            1. The problem is there are factors outside of ‘equal opportunities’ actually realizing into ‘equal outcomes’. The easiest and first that comes to mind is personal choice.

              While I agree 100% that we have plenty of room for improvement to actually reach the point where we’re offering equal opportunities to everyone; it doesn’t mean that if 15% of the population is black, that every possible opportunity “must” have a 15% black participation or it’s not ‘equal’.

              1. The problem is there are factors outside of ‘equal opportunities’ actually realizing into ‘equal outcomes’. The easiest and first that comes to mind is personal choice.

                Do we have any reason to believe that similarly-situated white and Black people would make different “personal choices”?

                Atomizing systemic phenomena to matters of “personal choice” or “personal character” is rhetorically satisfying, but deficient in terms of explaining the phenomena. If white people are choosing to walk the path towards becoming judicial candidates at a greater rate than Black people, despite being given equal opportunity and having been raised in similar circumstances, the question is, why? Answering, “personal choice” just mystifies the question, and itself requires some kind of empirical justification. Why would white people choose it more than Black people?

                1. Is there a way to respond to this that doesn’t involve question begging regarding the use of the term “similarly situated”? If I point out that, on average, people of different racial/ethnic backgrounds have different personal preferences in all sorts of areas, from music to food to tv to sports, without any suggestion that an underlying explanation is required, are you just going to say that this doesn’t prove anything because the people making those different choices aren’t similarly situated?

                  And is it your position that in a hypothetical world free of discrimination, we would expect to see each ethnic/racial grouping represented roughly equally in each industry?

                2. I don’t have an issue with questioning it, that’s reasonable. But you stop only just short of ‘systemic racism’ as the predefined answer to unequal outcomes. Opportunity does not equate to outcomes and you seem to indicate in your wording that anything short of equal outcomes ‘should’ point to racism.

                  I noted clearly that the ‘easiest and first’ explanation is personal choice. Nowhere did I indicate it was the most prevalent or the only explanation. Not to mention I specifically stated that we still have plenty of room for improvement before reaching equal opportunity.

                  I’m not full up on psychological studies as to ‘why’ people make certain choices in their lives and based on your response the question is either rhetorical or you’re looking for someone with an answer containing greater details and empirical justification than you’re likely to find here

                  What I’m talking about is specifically outside of ‘unequal opportunity’ being the cause, the first is going to be personal choice. I get that it doesn’t satisfy your curiosity over what is and is not. Nor does it provide whatever specific tangible answers you’re looking for. But your dismissal is premature and short sited.

                  What we should be looking at is if something is outside one standard deviation. In statistics everything has a standard deviation. If outcomes are outside of a standard deviation, then start asking why without thinking racism is at the top. It may be still in many situations. However, if every question of why begins with ‘racism’ as the answer then we will certainly see racism as the answer to every question we ask.

        2. I see, you haven’t engaged with – you may not even know about – the work of Thomas Sowell.

          But you make up for your ignorance by your unwarranted certitude and your belligerence.

          1. I am not sure why I need to anticipate that some troll online will cite Sowell – like he’s ever read a book – and craft a comment accordingly.

            If you think Sowell has established something that is relevant to this line of discussion, it is incumbent upon you to be specific about what that is, and then I can address whatever point you’ve raised with whatever level of knowledge or ignorance I happen to have about his work. As things stand, it appears that you’re just dropping names the way an eighth-grader might randomly append “sources” to a last-minute Works Cited list, without any apparent relevance to the subject at hand.

            To be clear, I’m not AA- or quota-stanning. I am not supposing that we prioritize “diversity” over “quality of candidates,” to the extent that’s ever really the choice before us. (And I do not think it often is.) I am just describing why diversity matters.

            1. As a matter of fact, you’re stating a conclusion, without evidence, and calling people who disagree with you fat racists and illiterate trolls. It is hardly “incumbent upon me” to enact your labor (as your crowd calls it) and provide you with the basic educational background which would allow you to converse intelligently on this subject.

              1. I insult idiotic trolls like yourself because I know that any attempt to engage in good faith will result in exactly the same responses, regardless. Why pull punches? We all know you’re fat and borderline illiterate. Why else would you be citing Sowell?

                Again, the way to engage in a discussion where you think Sowell is relevant is to explain how he is relevant, not to attack me for somehow not synthesizing the points you think I should have before your eyes ever saw my comments. The fact that my comments do not suggest that I’ve read and agreed with his views (in your view) does not mean that I’m not able to discuss the topic intelligently. That’s just begging the question.

                1. You are a silly person.

                  You claim to have mastered the works of Thomas Sowell sufficiently to be able to dismiss them. If you know his work that well, though, you would be aware of how his research is relevant tot his topic, and you would know why someone who is skeptical of your conclusory assertions about racial representation would cite him.

                  So I suspect you are lying, and that you have not actually read his work.

                  Am I fat? Well, in any case, when I get on top of your wife, she doesn’t want me to get off until she does.

                  Because I have sex with your wife, you see.

                  1. You claim to have mastered the works of Thomas Sowell sufficiently to be able to dismiss them.

                    I certainly haven’t claimed that. I am inviting you to explain what he’s supposed to have established that ought uniquely to bear on the points I am making here. I notice you still haven’t done that. I am beginning to think you haven’t “master” his work, either.

                    To be clear, I haven’t read Sowell. A cursory look at what is said about him online reveals that he has written extensively on AA and its purportedly counterproductive effects. He otherwise seems to take fairly conventionally “conservative” positions on the existence and relevance of phenomena like “systemic racism” and the like, and has focused his efforts more on polemics as of late.

                    So I can see why an illiterate “libertarian” might think that simply stating his name and accusing me of not having “mastered” his work would be sufficient to “refute” an unrelated set of assertions about the potential value of diversity. But I do not see why it would actually be relevant. So, I’ve invited you to provide the missing piece of your argument.

                    I’ll wait.

                    Am I fat? Well, in any case, when I get on top of your wife, she doesn’t want me to get off until she does.

                    I love that you deflect, without denying, the accusation. So very, very typical and expected.

                    In any event, I’m a flaming queen in an open relationship, so I suspect you would find the cuckolding you’re fantasizing about to be rather less satisfying than you’ve imagined. I’d be more concerned about the drug-resistant gonorrhea you’d be introducing to the relationship than the fact of any “infidelity” within the “marital bond,” so to speak. Not that my partner would have much interest in your micro-penis, anyway.

                    1. “open relationship…my partner”

                      I was going to insult you some more, but you’ve already called yourself the gay equivalent of a cuckold so what’s the point?

                      I personally have studied the arguments both for and against racism – including that form of racism which goes under the euphemism of affirmative action – and I have been convinced by the arguments *against* racism – including Sowell’s arguments against affirmative action. You on the contrary haven’t bothered to study the arguments against racism, you simply regurgitate slogans which have the same intellectual content as Mao’s Little Red Book. And you’re not even embarrassed to admit your own ignorance.

                      So you’ve called *yourself* an ignorant cuckold. Any further effort on my part to insult you would be superfluous.

                    2. Pardon me, I meant to say ignorant racist cuckold. Pardon the omission.

                    3. Cal – you claim to have been “convinced by the arguments against racism,” but again you don’t bother to actually make a point. You haven’t said a single thing that would incline me to believe that you’ve read a word of Sowell, much less understood anything he’s said or written.

                      Make. The. Argument. Or shut your goddamn mouth, troll.

                    4. Although a voluble proponent of racial discrimination, you haven’t bothered to investigate the well-known anti-racist arguments made by a distinguished and highly intelligent professor of economics on the very subject you’re pontificating about.

                      By all means assure yourself that it’s my fault for not educating you about material you should certainly have read before wading into such a controversy.

              2. You are a bigot, Cal Cetin. You might as well acknowledge it.

                1. You support racial discrimination, ergo you are a racist. Is that too difficult for you to grasp?

  13. I’m not sure equality of opportunity is what we really want. Some parents are going to be more willing or able to provide their children with opportunity than others.

    Maybe we make sure everyone had a baseline set of opportunity.

  14. I loved the “wise Asian” remark. Might be some friction if he did go up to the Supreme Court.

    1. Sotomayor’s response:

      “I fully agree with my new colleague Justice Ho. I, too, would never suggest that a wise Asian would, more often than not, reach a better conclusion than a white judge.”

    2. Of course you do. Hollow ‘owning the libs’ moments are and increasingly will be most of what conservatives have left in modern America.

      Enjoy the rest of the culture war, clingers. I know I will.

  15. We all know a tranny Afro Asian Pansexual American would make the best judicial decisions because they have such a diverse background.

    1. American? You xenophobe!

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