The Volokh Conspiracy
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Judge James C. Ho's Remarks on Justice Thomas and Judge Kacsmaryk
"We should apply the highest ethical standards, not hypocritical double standards."
Today, Judge James C. Ho spoke to the Dallas Chapter of the Federalist Society. I am happy to publish his remarks:
Thanks so much to the Federalist Society for the opportunity to speak with you all today. I'm here to briefly respond to recent events concerning the issue of ethics in the judiciary. But I'll begin by admitting my personal bias in these matters.
I had the profound honor of clerking for Justice Thomas from 2005 to 2006. But well before that, I had long concluded that Justice Thomas is one of the most principled and fearless individuals to have ever served in the judiciary. He is a role model—and one of the most inspiring and fascinating Americans alive.
Harlan Crow is a respected business leader, a devoted patriot, and a generous philanthropist. He regularly opens his properties to civic organizations, scholars, and public officials. In fact, he opened his home to me and my family, so that Justice Thomas could swear me in on my first day on the bench. For that, I am eternally grateful. I'm deeply honored to know them both.
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Public service is a public trust. Citizens deserve a government they can believe in. So I warmly welcome any good faith discussion about how to strengthen ethics in government.
But we should apply the highest ethical standards, not hypocritical double standards. It disserves the cause when we allow ethics to be weaponized to punish disfavored viewpoints. No one respects a rigged game.
Unfortunately, I've seen how ethical principles can be contorted and misused—not to serve the public good, but to further a political objective. I'll begin with a personal example.
Last year, I was accused of being unethical for publicly stating my concerns with selecting judges based on race. Four other federal judges testified at the very same hearing where I first spoke. Yet none of them were criticized for being unethical. I can only presume that's because the ethics police agreed with them and disagreed with me.
Had I simply parroted the views favored by cultural elites, I have no doubt that these folks would not have accused me of being unethical. But that's not ethics—that's politics.
* * *
In 2021, The Wall Street Journal alleged that over a hundred federal judges had violated the law by failing to recuse in cases in which they had a financial interest.
Notably, the Journal did not accuse all of those judges of actual corruption—of actually deciding cases to further their own interests. That's an important distinction to draw. Because there's a big difference between actual corruption and the appearance of corruption.
That's not to say that appearances aren't important, too. It's vital that citizens have confidence in their judiciary. As judges, we don't have the purse or the sword. All we have is our credibility with the American people.
But we should recognize what the Journal did and did not conclude. It showed that judges are imperfect human beings, like everyone else. But I don't recall anyone calling for all of these judges to be impeached or punished.
* * *
Many Supreme Court Justices have enjoyed many trips hosted by individuals and organizations that may not have a direct interest in a pending case, but no doubt care deeply about certain cases, as surely every American does. Yet no one has said that that's enough to trigger recusal, as was the case in the Wall Street Journal article.
If we want to strengthen disclosure requirements, we can certainly do that. And if we want to categorically prohibit judges from accepting trips from others, we can do that as well.
But whatever we do, I think it would be inaccurate to automatically presume some sort of illicit motive. Many people genuinely enjoy spending time with—and learning from—interesting people who do interesting work. Judges aren't the only ones invited on trips. Scholars and journalists are, too. I was recently invited to Florida to speak to a respected nonpartisan organization—along with a number of distinguished law professors and journalists. Was everyone there to gain corrupt influence with members of the academy and the media? Surely not. And for the same reason, we shouldn't assume illicit motive with every Justice who accepts a trip.
And we certainly shouldn't assume illicit motive just because we happen to disfavor one's views. Again, that's not ethics—that's politics. And it's part of the same problem we're seeing in law schools across America. We're increasingly teaching people to presume bad faith and malicious intention from anyone we disagree with.
* * *
People are doing the same thing to my friend Judge Matt Kacsmaryk.
To understand, you have to remember this: The Justice Department instructs every potential judicial nominee to stop making any public statements of any kind.
When my own nomination was imminent, a reporter wanted to talk to me about a big case that I had just won for a client. He wanted to give me some "Litigator of the Week" recognition, but needed a quote from me before he could do it. The Justice Department instructed me not to talk to the reporter. So I dutifully obeyed. I have no doubt Judge Kacsmaryk was doing exactly the same thing—following instructions.
And there's nothing wrong with those instructions. Consider this analogy: Imagine that someone was thinking about becoming general counsel of a controversial political group. But they never did it, because they were nominated for a judgeship. Nominees aren't required to disclose future jobs that they don't end up taking. Nor are they required to disclose future articles that they don't end up authoring.
I presume that Judge Kacsmaryk would not be required to disclose the article if he had simply withdrawn it altogether. After all, a document isn't final until it's final. And if it had been a solo effort, I imagine that he would've withdrawn it.
But this was a joint effort. And given that it was a joint effort, I see no reason why Judge Kacsmaryk couldn't just let his co-authors proceed without him. I don't see why all their efforts had to go to waste. I can imagine Judge Kacsmaryk just felt bad for his colleagues.
There's nothing wrong or unusual about lawyers who work together on a document, knowing full well that some of them may not end up signing and getting public credit for the product. That's what law clerks do for judges. How many law firm associates have ever contributed to a document that they didn't end up signing—such as a motion or brief or article or speech or client alert? My guess: All of them.
This is such a common phenomenon that there's a name for it. It's called ghostwriting. Now, if the Senate wants to amend its forms to require disclosure of all ghostwritten material, it certainly can do so. But that would be new. Former Senate lawyer Stephen Breyer was not required to disclose everything he ghostwrote for Senator Ted Kennedy.
* * *
I'm all for discussing ways to strengthen ethics in government. But we should do it in good faith. And our discussions should be proportionate to the facts.
During the 2016 Presidential election, Justice Ginsburg made a series of highly disparaging remarks about Donald Trump. She called him a "faker." She criticized the media for not looking into his tax returns. And she said that "I can't imagine what this place would be—I can't imagine what the country would be—with Donald Trump as our president."
A few years earlier, she told the New York Times that, "at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of."
Suffice it to say that these are highly unusual statements for a sitting Supreme Court justice. Yet she did not recuse herself in countless cases involving either abortion or President Trump.
Even so, President Trump later described Justice Ginsburg this way: She led an amazing life and was an amazing woman, whether you agreed with her or not.
Well, here's what I would say about Justice Thomas: He is an amazing man, and his life exemplifies the American Dream, whether you agree with him or not.
By all means, let's talk about what we can do as a country to strengthen ethics in our government. But we can do it without the double standards. We can do it consistently, not selectively. And we can do it without tearing down an honorable man like Justice Thomas. Thank you.
I will have more to say about these matters in due course.
