WASHINGTON – Appellate Judge James Ho of Dallas, a former law clerk to Clarence Thomas, defended the justice’s honor Tuesday, rejecting ethics allegations involving lavish trips provided by real estate magnate Harlan Crow.
“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,” Ho told the Dallas Chapter of the Federalist Society, a conservative legal group.
The 5th Circuit Appeals Court judge also shot down allegations that Judge Matthew Kacsmaryk in Amarillo, who ordered a ban last week on a common abortion drug, misled the Senate by removing his name from a vehemently anti-abortion law review article.
Last week, a three-judge panel of the 5th Circuit – not including Ho – overturned parts of Kacsmaryk’s order. The Supreme Court is expected to sort out conflicting rulings from lower courts.
“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… . It’s called ghostwriting,” Ho said.
The two controversies are unrelated, except that both jurists are beloved by conservatives.
In recent weeks, ProPublica, an investigative news outlet, documented more than two decades of luxury vacations Crow provided that Thomas did not disclose.
ProPublica also revealed that Thomas sold his mother’s home to Crow. The failure to disclose that transaction may have violated the post-Watergate Ethics in Government Act of 1978.
On Sunday, Crow told The Dallas Morning News that in more than two decades of genuine friendship, he has never sought to influence the justice on any legal topic.
“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,” Ho said Tuesday at the Belo Mansion in downtown Dallas during a continuing legal education session with four federal trial judges.
“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. …That’s not ethics — that’s politics,” Ho argued.
He called Crow “a respected business leader, a devoted patriot, and a generous philanthropist” who “regularly opens his properties to civic organizations, scholars, and public officials.”
That includes himself. In January 2018, Crow hosted Ho’s swearing-in – by Thomas – at his Dallas mansion known for an extensive collection of political and historical artifacts.
Sen. Ted Cruz was among those on hand.
A graduate of Stanford and the University of Chicago school of law, Ho worked as a legal adviser to Sen. John Cornyn before clerking for Thomas in 2005 and 2006, which he called a “profound honor.”
In 2008, he replaced Cruz as Texas solicitor general, the state’s chief appellate lawyer.
Back in private practice, he led Cornyn’s judicial vetting team, a post he gave up when President Donald Trump named him to the New Orleans-based appeals court in September 2017.
Thomas has asserted that he was not required to disclose vacations provided by a friend, no matter how extravagant – such as the 2019 trip to Indonesia by private jet and 162-foot yacht that ProPublica valued at $500,000.
“I warmly welcome any good faith discussion about how to strengthen ethics in government,” including new disclosure rules or a ban on judges accepting trips from anyone, Ho said, but “we should apply the highest ethical standards, not hypocritical double standards.”
As for Kacsmaryk, he handed abortion foes a win last week with a ruling that would scrap the FDA’s approval of mifepristone over 20 years ago. A federal judge in Washington state issued a conflicting order moments later.
On Saturday, The Washington Post reported that shortly before Trump nominated him in 2017, Kacsmaryk asked editors at the Texas Review of Law and Politics, a conservative journal he’d led as a University of Texas law student, to take his name off an article he had submitted.
Instead of being the only author, his name would be replaced by those of two colleagues at the Plano-based First Liberty Institute, a conservative law firm.
The article argued that Obama administration regulations failed to protect doctors who refuse to “use their scalpels to make female what God created male” or “use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.”
Ho shrugged aside Democrats’ allegation that Kacsmaryk intentionally misled senators to avoid scrutiny.
“Nominees aren’t required to disclose future jobs that they don’t end up taking [or]… articles that they don’t end up authoring” or that they withdraw entirely, Ho said Tuesday.
“After all, a document isn’t final until it’s final,” Ho said. “Given that it was a joint effort, I see no reason why Judge Kacsmaryk couldn’t just let his co-authors proceed without him.”
“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,” he said. “Former Senate lawyer Stephen Breyer” who retired from the Supreme Court last year “was not required to disclose everything he ghostwrote for Senator Ted Kennedy.”
———
