Judge James C. Ho’s Speech On “Judicial Courage” and Judicial Selection

I’m profoundly humbled that you’ve asked me to share my thoughts on the theme of tonight’s discussion:  “Judicial Courage.”

But if I’m being candid, I’m also a little embarrassed.  That’s for two reasons.

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First, the word “courage.”  When I think of the word “courage”—well, I can think of a lot of people who show courage.  But frankly, none of them are judges.

When I think of “courage,” I think of soldiers, police officers, firefighters—people who put their lives on the line.  But federal judges—we don’t even put our jobs on the line.

Many people of faith risk their livelihoods for their beliefs.  You can certainly call that courage.

But federal judges enjoy life-tenure—a guaranteed annual salary that puts us easily in the top ten percent of all Americans—and smart, driven law clerks to help us do the work.

So for judges, affirming the truth should be easy.  For judges, it’s not courage—it’s merely duty.  It’s our duty to follow the law in every case—regardless of whether our decision is popular or divisive.

Now, I’m not saying that it’s fun to be criticized.  Nobody likes to be booed.  But it’s the job we signed up for.  And let’s be honest, it’s the job that many judges lobbied for.  And it’s why the Constitution affords us with life tenure—so that we can take the arrows.

If that’s not enough protection, if you can’t deal with the criticism, that’s okay—you can resign.  Trust me—you’ll do just fine in the private sector.  It’s life tenure—not a life sentence.

But if you’re going to do the job, then do the job.

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There’s a second reason I find it awkward to talk about “judicial courage.”  As we celebrate our Nation’s semiquincentennial, consider how the judiciary is doing, when it comes to upholding certain self-evident truths.

For example:  What about the Biblical truth that marriage is the union of one man and one woman?

Justice Thomas has called on the Supreme Court to restore the traditional definition of marriage—and the longstanding precedent supporting that institution—by overturning the Obergefell decision.  But that was in a solo separate opinion.  We’re nowhere near the four votes necessary to grant a cert petition—or the five votes needed to rule on the merits.

What about the Biblical truth that men are not women?

Just a few weeks ago, in West Virginia v. B.P.J., the Supreme Court got the law right.  But I’d put an asterisk next to this one.  Because in the caption of the decision, the Court used a female pronoun to refer to the male plaintiff.  No such pronoun appeared in West Virginia’s cert petition—nor in the ACLU’s opposition brief.  So it must have been added by someone at the Court for some reason.  That contrasts with my own experience as a Supreme Court litigator many years ago.

We may not know who added the pronoun.  But we know for sure who didn’t.  In that same case, Justice Thomas pointed out that “[m]en . . . are not women . . . , even if they believe that they are.”  And to say otherwise is to “show indifference regarding the truth.”  But once again, that was in a solo separate opinion.

What about the basic truth that pregnancy is not an “illness”—and chemical abortion is not the cure—no matter what some bureaucrats in the federal government might insist?

Earlier this year, the Court declined to enforce longstanding restrictions on chemical abortion, over vigorous dissents from Justices Thomas and Alito.

Or what about the basic truth that foreign governments weaponize illegal immigration to hurt other countries?

For decades, Administrations of both parties have warned about the use of illegal immigration as a weapon of war.  And judges are supposed to defer to Presidential declarations of a state of invasion.  So the Supreme Court should have upheld the President’s birthright citizenship order in full based on his invasion declaration.  But the Court didn’t mention the invasion declaration anywhere in its unfortunate decision last month.

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Justices Thomas and Alito have addressed the issue of judicial courage on multiple occasions.  They’ve repeatedly observed that too many judges are too often too afraid to apply basic truths—and do their duties—over concerns about reputation and criticism.

So how did we get here?  And what’s the solution?

I recently came across a survey, capturing what Americans believe about the state of religion in our country in the year 2025.

One of the survey questions asks whether you agree with the following statement:  “Christians should not allow their religious beliefs to influence their political decisions.”

A majority of Americans agreed with that statement.

But what may be even more alarming to many of you is that the majority of Americans were also joined by one-third of Evangelicals.  They too could not support the idea of Christians applying their most strongly held beliefs and values to how they view their own government.

To be clear, I’m not here to opine on matters of theology.  I’m a judge, not a pastor.

But we should have no illusions about what happens when Christians abandon the public square.

Everyone else in America undoubtedly lets their most cherished values and principles influence their views of government.

So what do we think will happen when Christians cede the field to everyone else?

What do we think will happen when religion in America is demoted from a favored status to self-imposed exile?

Who do you expect to speak on your behalf—if you don’t?

In my experience, when it comes to the self-appointed “experts” who comprise so much of the political class in Washington, D.C., they all too often decide what positions to take, and who to support or oppose, for one of two reasons—either because they want to get ahead, or because they want to get paid.

So it’s a simple choice:  Christians can either get involved—or we can abandon our posts, and leave it to the so-called “experts.”

But the difference will be stark:  Decisions will either be based on our Biblical principles—or their business prerogatives.  We can either place our trust in leaders who regard our values as transcendent—or as transactional.

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Now, I’m not here to opine on how Christians should view the other two branches of government.

But as a lifelong student of the judiciary and the judicial selection process, I do have some things to say about the difficulties of achieving courage in the courts without Christians in the courts.

And make no mistake:  That’s what we’re dealing with here.  Whether devout Christians should be targeted for discrimination and exclusion from this process, in violation of Article VI of the Constitution.

Let’s start with first principles.  In an ideal world, being a Christian should have nothing to do with being a judge.  But in a fallen world, being a Christian has everything to do with being a judge.

Being an originalist means following the text and original understanding of the law, no matter the outcome—and no matter the effect on the judge’s standing or reputation in the community.

And if that’s truly what you’re doing, then there shouldn’t be a Christian interpretation of the text or an atheist interpretation of the text.  There’s just a dutiful, faithful interpretation of the text.

But although we’re all supposedly originalists now, we know that, in practice, that’s simply not true.  We know that originalism may be permitted in polite company—but only until it leads to outcomes that are detested by the cultural elites who control the national discourse—and who dispense the prestige and respect and stature craved by so many judges.

Chief Justice Roberts famously compared judges to referees.  I agree with the analogy.  But I draw a very different message from it.  I see it as a cautionary tale.

I’m sure that there are many sports fans in the room—and that you’re all well aware of the phenomenon known as home field advantage.

Well, those who have studied home field advantage have concluded that it’s real—that the biggest cause of home field advantage is the referees—and it’s because the referees are responding to the booing of the crowd.

A number of studies show that umpires and referees across different sports will alter their calls, to avoid the booing of the crowd.  It’s such a common phenomenon that there’s a name for it:  It’s called “working the refs.”

And here’s the thing:  There’s every reason to fear that the problem is even more extreme when it comes to judges.

After all, people usually don’t know the names of umpires and refs.  So the booing is temporary.  It goes away after a few moments.  But the elites know full well how to boo and demean judges for the rest of their lives.  And judges who have spent their entire lives collecting gold stars from cultural elites will adjust accordingly.

That’s where faith plays a critical role in this fallen world.  Being a faithful originalist is like being a faithful Christian.  You have to be ready to be hated.  To be booed by the crowd.  And to ignore the ridicule, and just do the work, as passages like Nehemiah 4 remind us.

As Christians, we know that God wants us to be challenged—and what’s more, He wants us to fight back.  I think of passages like Exodus 14, Numbers 32.  We’re supposed to be willing, ready, even eager to take heat for our beliefs.

But that’s not something you’re going to do, if all you care about are earthly concerns.

As Christians, we know that this is not home.  We are not home.  Hebrews 13:14: “For this world is not our permanent home; we are looking forward to a home yet to come.”

Our time here is fleeting, transient.  But if we start to see this world as home, then we’ll quickly find ourselves on the wrong path.  We’ll be seduced by worldly values.  We’ll desire the praise of man.

That’s the end of being a faithful Christian.  And it’s also the end of being a faithful judge, in this fallen world.

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As I approach my tenth year on the bench, I often think of the fifteen years I spent participating in the judicial selection process—at the Justice Department, the Senate Judiciary Committee, and with the Federal Judicial Evaluation Committee in Texas.

That experience taught me three Biblically-based principles of judicial selection.

First, I think of the advice that Moses received about how to select good judges.  The Book of Exodus tells us to choose “trustworthy men who hate dishonest gain.”

In other words, pick people you can truly trust to rule honestly, based on the law, and only the law.  Ruling based on who’s favored or disfavored by cultural elites is most certainly awarding dishonest gain.

Second, consider the advice that Paul gave in his first epistle to Timothy about choosing a good leader.  Don’t pick “a recent convert, or he may become conceited and fall under the same judgment as the devil.”

Instead, recall what was done when it was time to replace Judas among the 12 disciples.  As the Book of Acts explains, “choose one of the men who have been with us the whole time.”

In other words, don’t pick the Johnny-come-latelies—the ones who only showed up after it became socially acceptable and career enhancing to do so.  Choose only from those who have been here from the beginning, even when it was hard—those who were with us, not out of convenience, but out of conviction.

So long as you’ve narrowed the pool that way, then it really doesn’t matter who gets it—as long as they get it.

That’s a far cry from how the process often plays out.  There’s a saying in my chambers:  Nobody reads.  It’s true in litigation.  And it’s true in judicial selection, too.

Nobody actually reads what people have said and written.  And that’s why mistakes are made.  Because if nobody reads, then it’s not about who would do the job best.  It’s about who wants the job most.

And that’s exactly wrong.  It’s exactly backwards.  Because I want the people who are too busy to campaign—who just want to get the work done and then go home to their families.

Third, Jesus rejected the arrogance of many leaders.  He admonished His disciples to choose humility over elite status.

In Matthew 20, He observed that “the rulers of the Gentiles lord it over [their people], and their high officials exercise authority over them.  Not so with you.  Instead, whoever wants to become great among you must be your servant . . . just as the Son of Man did not come to be served, but to serve.”

In other words, pick people who will use power, not to serve themselves, but to serve others.  People who are willing to be a judge—not people who are desperate to be a judge.  People whose goal isn’t to get onto a bench, but to get into heaven.

And if this is truly your goal, then you will quickly discover one important truth:  Serving others often means standing alone.

Deuteronomy 20 is one of my favorite chapters of the Bible.  Because it teaches that it’s okay to be outnumbered in battle—so long as your cause is righteous.

One thing I never expected when I first took the bench is how often I would be writing not just dissents, but 1 against 16 dissents, as well as other solo opinions.

And not just judicial opinions.  A few years ago, the intolerance in certain elite law schools got so bad that I decided that I would no longer hire law clerks from certain schools.  I was convinced that, if enough judges joined the effort, the law schools would change their behavior in a heartbeat.  But very few joined.

Since then, law students often ask me:  Why haven’t more judges joined the boycott?  Well, you’d be surprised how many judges have told me:  Love what you’re doing.  Please keep doing it.  But sorry I can’t join you.  You’d be surprised how many judges have told me:  Well, if you can get other judges to join you, then I’ll join you.

Look, I get it.  There’s safety in numbers.  It’s scary to be alone, or in the extreme minority.  But Deuteronomy 20 reminds us that, when you go to war, don’t be afraid of an army greater in number than yours.  Just worry about being on the right side, and the rest will take care of itself.

We should heed the words of Justice Thomas:  North is still north.  Right is still right.  Even if you stand by yourself.

Remember what Jesus told the disciples in John 15:18:  “If the world hates you, understand that it hated me, before it hated you.”

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We need people of faith who are willing to serve our country—and serve it well.

We need men and women who will never forget the message of Hebrews 11.

That we are but “foreigners and strangers on earth”—”longing for a better country—a heavenly one.”

And that when we are finally, mercifully called home, we just hope and pray that we will be able to tell ourselves, and our Lord—as in Second Timothy 4—that we have fought the good fight, we have finished the race, we have kept the faith.

God bless each and every one of you.  And God bless America.