Federal Judge James Ho Surprises Georgetown Law with Speech Defending Ilya Shapiro
By NATE HOCHMAN
February 15, 2022 12:39 PM
Left: Ilya Shapiro speaks about constitutional law in 2014. Right: James C. Ho testifies during his Senate Judiciary Committee confirmation hearing on November 15, 2017. (The Federalist Society/via YouTube, Tom Williams/CQ Roll Call/Getty Images)
Guest speaker scraps original remarks in favor of unequivocal statement on freedom of speech and declares, ‘I stand with Ilya.’
NRPLUS MEMBER ARTICLE
Federal judge James C. Ho delivered a robust defense of Ilya Shapiro on Tuesday in a speech at Georgetown Law, which recently suspended the respected legal scholar over a poorly worded tweet.
“I stand with Ilya,” Ho declared.
The subject of his address was a surprise to the audience. The judge on the Fifth Circuit Court of Appeals had been slated to give a lecture titled “Fair Weather Originalism: Judges, Umpires, and the Fear of Being Booed,” in an event organized by the law school’s chapter of the Federalist Society. At the outset, according to prepared remarks exclusively obtained by National Review, Ho said he “was scheduled to talk” about originalism, “but I hope you won’t mind that I’ve decided to address a different topic today instead.”
Ho continued, “I’m going to spend my time today talking about Ilya Shapiro.”
Shapiro, a libertarian-conservative legal scholar who was set to take over as the new executive director and senior lecturer for Georgetown Law’s Center for the Constitution on February 1, has been the subject of a highly publicized controversy surrounding tweets criticizing President Biden’s use of racial preferences in the Supreme Court nomination process. Shapiro had responded to Biden’s pledge to nominate a black woman for the open seat by touting an Obama-appointed judge and lamenting that Biden’s pledge would force him instead to choose a “lesser black woman.” He deleted the tweet and apologized, but that didn’t calm the storm.
Shapiro’s case quickly became a flash point in the ongoing national debates over cancel culture and free speech. When the law school’s dean caved to activist demands by placing Shapiro on administrative leave, condemning his remarks as “antithetical to the work that we do here every day to build inclusion, belonging, and respect for diversity,” it sparked a bitter backlash from conservatives and academic-freedom advocates. Late last week, the school was embroiled in another controversy surrounding a professor who appeared to refer to a student as “Mr. China man” after forgetting his name.
These controversies were the backdrop for Ho’s remarks. While it wasn’t clear whether Ho was familiar with the second incident — his speech was entirely dedicated to the discussion of Shapiro’s case — the judge’s broader defense of academic freedom came with the weight of his personal biography: Ho, a Taiwanese American who immigrated to the United States with his parents when he was young, became the first person of Asian descent to sit on the Fifth Circuit when he was appointed to the position by then-president Donald Trump in 2017. He is also a co-chair of the Judiciary Committee of the National Asian Pacific American Bar Association, a member of the U.S. delegation to the United Nations Committee on the Elimination of Racial Discrimination, and a former attorney in the Justice Department’s Civil Rights Division.
JOIN THE TUESDAY
Get Kevin D. Williamson’s newsletter delivered to your inbox each Tuesday.
Email Address
Ho’s background as a non-white immigrant, and his history in combating racial discrimination, featured prominently in his defense of Shapiro. “I confronted racial discrimination as a student, as a member of the legal profession, and as an Asian American during the Covid-19 pandemic,” the judge told attendees, according to the prepared remarks. But “cancel culture is not just antithetical to our constitutional culture and our American culture,” he said. It’s “completely antithetical to the very legal system that each of you seeks to join.”
The first half of the speech defended Shapiro’s right to make controversial comments on the grounds that the freedom of speech is “the foundation of our entire adversarial system of justice,” in Ho’s description. “You must understand your opponent’s views in order to fully understand, and thus powerfully defend, your own views,” he said.
That sentiment echoes many of the civil-libertarian defenses of Shapiro. The Foundation for Individual Rights in Education (FIRE), for example — a leading advocate of value-neutral academic freedom — wrote a letter to the dean maintaining that “freedom of expression protects both Shapiro’s tweets and the criticism that followed.” FIRE did not defend the content of the words that had sparked the controversy: “Beyond noting their protected nature, FIRE takes no position on the merits of Shapiro’s tweets or on those of his detractors, and trusts that his remarks, as well as the response they engendered will—as they have been—be dissected, interrogated, and challenged.” This was a defense of Shapiro’s freedom rather than a defense of Shapiro himself.
But the second half of Ho’s speech went a step further. Ho defended the substance of Shapiro’s tweets, maintaining that equality of opportunity — which he described as “fundamental to who we are, and to who we aspire to be, as a nation” — was the principle that Shapiro was originally defending. “Ilya has said that he should have chosen different words. That ought to be enough,” Ho said. “I have no doubt — zero doubt — that Ilya did not intend anywhere near the worst interpretation that has been applied to his remarks.”
Ho went on to say that equal opportunity “define why America truly is the greatest nation on earth,” and that America’s founding principles “are the principles that brought my own family to these shores, and that I have held all my life,” even in the face of racial discrimination. Those principles, he continued, “are worth defending — no matter how loud the booing from the crowd.” While “racism is a scourge that America has not yet fully extinguished,” he acknowledged, “the first step in fighting racial discrimination is to stop practicing it.” (As others have also pointed out, Shapiro’s tweets were criticizing an actual instance of racial discrimination — i.e., the White House’s use of racial preferences in Supreme Court nominations.) “Make no mistake: If there is any racial discrimination in statements like these, it’s not coming from the speaker — it’s coming from the policy that the speaker is criticizing,” Ho said.
While Ho’s firm defense of Shapiro carried a not-so-implicit institutional criticism of Georgetown Law, it was met with relief by at least some students in the audience.
“I think everyone came expecting Judge Ho to give a standard talk on judicial philosophies and constitutional interpretation,” Rachel Wolff, a representative for the Georgetown Law Federalist Society, told National Review, adding she was glad he chose to “highlight Georgetown’s unfair treatment of Ilya Shapiro.” Luke Bunting, the co-president of the law school’s Conservative and Libertarian Student Association (CALSA), concurred: “His speech laid out exactly why free speech is important, and why the school’s handling of this situation has been so catastrophic for open discourse at Georgetown Law.”
Ho finished by tying his own views to Shapiro’s tweets. “Let me be clear: I stand with Ilya on the paramount importance of color-blindness. And that same principle should apply whether we’re talking about getting into college, getting your first job, or receiving an appointment to the highest court in the land.” As evidence, he cited testimony that he had given at a House Judiciary Committee hearing on “The Importance of a Diverse Federal Judiciary” where he had echoed Shapiro’s criticism of race-based judicial appointments, calling it “un-American” to restrict a judgeship to members of only one race.
“That’s all Ilya is trying to say. That’s all he has ever tried to say,” Ho said at Georgetown Law, according to the remarks.
“If Ilya Shapiro is deserving of cancellation,” he concluded, “then you should go ahead and cancel me too.”
