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Senate Confirms Former Texas Solicitor General James Ho to Fifth Circuit

Law.com, December 14, 2017

By: John Council

The U.S. Senate confirmed the nomination of Dallas lawyer James Ho to become a judge on the U.S. Court of Appeals for the Fifth Circuit, making him the first Asian American to sit on that court.

Ho, a partner in Gibson Dunn & Crutcher, is a former Texas solicitor general who served as a law clerk for U.S. Supreme Court Justice Clarence Thomas. He is well known in the Texas appellate law world and has argued more than 25 cases before the Fifth Circuit and the Texas Supreme Court.

Ho’s 53-43 confirmation vote came a day after the Senate approved another Texan, Texas Supreme Court Justice Don Willett to the Fifth Circuit, by a similar margin. Both Ho and Willett faced stiff opposition from Democrats who allege they are part of the Trump administration’s attempt to pack federal circuit courts with extreme right-wing judges with little vetting.

Ho faced tough questions during a Senate Judiciary Committee from Democrats related to a memo he wrote while working for the Justice Department’s Office of Legal Counsel in 2001. The memo was cited in a footnote of the now-infamous torture memo authored by Judge Jay Bybee, who was then the assistant attorney general. Though Bybee’s memo is public, Ho’s is not.

Ho said he had “no involvement” in the drafting of the memo that allowed the use of advanced interrogations methods of terrorism suspects under the administration of then-President George W. Bush. Ho also told the senators that the memo was attorney/client privilege and only the Justice Department could release it.

“I cannot believe that anyone in the Republican leadership would have allowed a nominee of a Democrat that was the author cited in a key and controversial memo without answering questions about it,” said Sen. Patrick Leahy, D-Vermont, who voted against Ho’s nomination.

Ho has a close relationship with both Texas Republican senators John Cornyn and Ted Cruz. He previously served as Cornyn’s chief counsel and has maintained a friendship with Cruz for 20 years. Ho also served on the senators’ Federal Judicial Evaluation Committee, which helps vet judge nominees and resigned that position before pursuing the Fifth Circuit seat.

Cornyn recounted Ho’s inspiring immigrant story in a Senate floor speech, noting he was born in Taiwan and moved to the U.S. with his parents as a toddler and learned to speak English by watching PBS’s “Sesame Street.” Ho graduated from the University of Chicago in 1999 and also  served as clerk to Fifth Circuit Judge Jerry Smith.

“Simply put Jim Ho and Don Willett are stars in the Texas judicial landscape,” Cornyn said. “I’m glad we’re now elevating them to the federal bench.’’