Last week, the Fifth Circuit refused to rehear en banc its bombshell ruling that states are, in most circumstances, forbidden from counting ballots that are submitted before election day but received after election day -- even where the practice is expressly authorized by state law. Permitting ballots postmarked by election day, but received sometime afterwards, is a common practice in many states across the country, and Congress has said nothing on the subject. But the Fifth Circuit -- channeling the recent partisan right attacks on mail-in voting nationwide -- decided that congressional silence demanded prohibition of this longstanding electoral practice.
I'm not going to write on the substantive question of this case though (Election Law Blog collects coverage here). Rather, I want to flag Judge Ho's two-page concurring 4chan post opinion, where he takes aim at his dissenting colleague Judge Higginson for noting the powerful critique of the panel decision by a "topflight" lawyer unaffiliated with the parties and who urged that it be addressed by the court.
Judge Ho is unimpressed. He says that this attorney's intervention doesn't offer any useful information to the court -- indeed, he doesn't address it at all. Rather, it "may just reflect the institutional bias at many of the nation’s largest law firms."
At one level, given the timing of this opinion, it is hard not to see Judge Ho's attack on national law firms as intentionally aligning itself with the Trump administration's crackdown on these same firms (also putatively because of their "bias" towards liberal causes). One major clue that is Ho's angle is a gratuitous shot he takes at BigLaw DEI practices, which has nothing to do with either the case at hand or law firms' alleged preference for liberal causes in their pro bono case selection, but of course looms large in Trump's own assault on the American legal citadel.
But it also is reflective of a broader pattern in Judge Ho's judicial temperament (or lack thereof) -- a pattern of grievance where, upon identifying broad classes of enemy groups, he defiantly abandons any pretense of judging individuals as individuals or on their individual merits.
Judge Ho's jeremiad in this opinion is against the practices of law firms. As a class, Ho alleges, these firms exhibit "institutional bias", these firms "are falling short of 'the great traditions of the profession,'", the firms "have abandoned neutral principles of representation, and instead engage in ideological or political discrimination in the cases that they’re willing to take on," and consequently the firms should not "be surprised when others take notice that they are no longer abiding by the principles of the profession, and react accordingly."
All of these attacks on large law firms elides the fact that Judge Higginson did not ever appeal to, or even mention, the august reputation of large law firms. He rather flagged the critique of one particular "topflight" lawyer -- Adam Unikowsky. Unikowsky is indeed a partner at the BigLaw firm Jenner & Block, he also as it happens is a former clerk for Justice Scalia. I don't know what types of cases either he or Jenner more broadly typically takes on pro bono. I do know in this case he made a highly-publicized critique of the panel decision, one that many legal observers found compelling, on an issue he otherwise had no connection to. But note that the whole point of Ho's fusillade against what law firms, as a collective, are allegedly doing is to justify his peremptory refusal to even entertain the substantive arguments made by Unikowsky, as an individual. He is lumped into this broad bloc of "large law firms", and from there he can be summarily dismissed as doing what "they" do: "motivated lawyering designed to reach a predetermined result." And here -- well before any engagement with Unikowsky's actual arguments, solely on basis of collective associations -- the thinking ends.
This is not novel behavior by Judge Ho. Ho has been a leading figure promoting academic boycotts of both Yale and Columbia Law Schools, refusing to hire as clerks graduates from either institution on the grounds that both universities allegedly discriminate against conservatives (for Columbia, he also cited alleged antisemitism). Here, too, the point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.
The MAGA right pretends (though less and less often) that its objection to "DEI" is that it fails to respect people as individuals or judge them on their individual merits. In reality, there are few more avid practitioners of anti-meritocratic politics than contemporary conservatives, for whom everything is filtered through a lens of identity and grievance. And that's all the more reason to state clearly what has become obvious: Judge Ho's politics (and he is nothing if not a political judge) are fundamentally collectivist in nature. He is constantly looking for excuses to refuse to evaluate individuals as individuals if they belong to the wrong group. The only thing that matters to him is whether you fall in the friend or the enemy camp. For the former, everything; for the latter, the law(lessness).
Here, too, every accusation is a confession. When it comes to group-based grievance politics that deny Americans' right to be judged based on the content of their character, there are few more flagrant abusers that Judge James Ho.
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