An outspoken federal judge often viewed as a potential Supreme Court justice called the nation’s university campuses “incubators of bigotry” that discriminate against religious conservatives, during a speech on Oct. 25.
Judge James C. Ho of the U.S. Court of Appeals for the 5th Circuit was on former President Donald Trump’s shortlist of potential Supreme Court appointees; he could find his way onto that list again should President Trump return to office. One leftist critic said Judge Ho “wants to be the next Clarence Thomas,” a reference to the Supreme Court’s preeminent conservative justice.
The Taiwan-born judge’s latest comments came during a speech that was followed by a moderated conversation at The Heritage Foundation, a conservative think tank, in the nation’s capital on Oct. 25. At the end of the discussion, he was presented with the foundation’s Defender of the Constitution Award.
The current anti-intellectual environment on campus is “driving more and more of us to ask if our nation’s colleges and universities are institutions of higher education or incubators of bigotry,” he said.
“The state of higher education concerns me, and it’s not just because our nation’s law schools directly impact the work of the judiciary, and help constitute the future leadership of our country.
“It’s also because the same toxic discrimination that distorts discourse on college campuses also distorts discourse about the courts. It’s the same mindset that motivates the current campaign to undermine the third branch of government.”
Cancel Culture at Yale
Last year, Judge Ho and Judge Elizabeth Branch of the U.S. Court of Appeals for the 11th Circuit, both of whom were appointed by President Trump, vowed not to hire judicial clerks from Yale Law because they say its campus is dominated by cancel culture.Judge Ho was incensed by the treatment of Kristen Waggoner of the conservative Alliance Defending Freedom (ADF) at a March 10, 2022, event at the law school.
ADF is disliked in left-wing activist circles because it has won several religious freedom cases, including 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission. That’s the famous case in which bakery owner Jack C. Phillips refused to make a cake for a same-sex wedding because he had religious objections to same-sex marriage.
The same-sex couple brought charges under Colorado law, and the state civil rights commission issued a cease-and-desist order against the bakery. Eventually, the Supreme Court ruled for the baker, finding that the state law violated his First Amendment freedoms of expression and religious exercise.
The controversial far-left Southern Poverty Law Center claims that the ADF is an “anti-LGBT hate group,” an accusation that ADF vigorously rejects.
At the Yale event, students physically threatened and shouted down Ms. Waggoner during a panel discussion about Uzuegbunam v. Preczewski, in which the Supreme Court found that another college violated students’ right to religious free speech on campus. Ms. Waggoner was their lawyer.
In September 2022, Judge Ho said he wasn’t engaging in cancel culture himself by boycotting Yale graduates.
“I don’t want to cancel Yale,“ he said, citing the protest action targeting Ms. Waggoner. ”I want Yale to stop canceling people like me.”
When Judges Apply Originalism
During the Heritage event, Judge Ho said that when judges apply originalism and it “happens to lead to results despised by the cultural elites who lead the national discourse ... originalists face a concerted campaign of condemnation.”Popular among conservatives and those who support limited government, originalism calls for adhering to the Constitution’s meaning at the time it was written.
“Originalists are disparaged and destroyed,” he said.
Describing how originalists are characterized by their critics, he said: “We’re not merely wrong, as an intellectual matter. We’re not just disagreeing in good faith about the proper meaning of legal terms.
“We’re fundamentally bad people who are just too extreme for polite society, or mean-spirited, racist, sexist, homophobic, or just trolling, or auditioning or unethical, if not corrupt.”
These intimidation campaigns affect judges, he said.
“We’ve certainly heard plenty of threats about packing the courts. But there’s really no need to pack the courts when you can just pressure the courts and get the same result,” he said.
“It’s the same pathos that we see on college campuses. It’s not enough that I disagree with you—I also have to dislike you, and disparage and disrespect you as a human being. Instead of judging your reasoning, I pass judgment on the person behind it. I don’t presume good faith.
“In sports and politics alike, judges must have not only the intellect but also the fortitude to be impartial. No matter how angry the crowd, judges must not be afraid of being booed.”
Millions of Americans embrace originalism because “they like the Constitution—they like what it says. They like what it protects and shields against the ravages of the mob,” he said.
Judges need to get “comfortable” with “harsh criticism,” he said.
Americans are “extraordinarily blessed to live in this amazing country, and some of us have been fortunate to play at least some small role in helping to lead this country forward,” he said.
“Whether we’re judges or leading practitioners in the law, or influential legal scholars or any number of other positions, but that privilege can come with a cost. To use an analogy, being faithful to the Constitution is like being a faithful Christian. As the Bible teaches, Christians should expect to be criticized.
“The viewpoint discrimination we most often see in the academy today is discrimination against religious conservatives.”
People in the Yale community who support the boycott have urged him not to let up, the judge said.
He said he has received “a number of calls and inquiries from students and scholars at Yale, saying ... ‘Please don’t withdraw the boycott.’ They were actually worried that we would sort of be happy and say, ‘You know what? Life’s good. No, no more boycott.’
“They said specifically, ‘Please don’t do that—do the opposite.’ And what they said is ... they’ve noticed a genuine change at the school, but they’re worried that it’s fleeting. They’re worried that it’s not going to be permanent.”
Even though the school’s administration is now willing to allow students to hear more diverse views, they said, “Please, don’t use that as an excuse to withdraw the boycott. We need to see more.”
