By Nate Hochman
Tuesday, February 15, 2022
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.
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[s] 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.”
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