Judge James Ho, who was named to the Fifth Circuit Court of Appeals by President Donald Trump in 2017, spoke this month at a “National Consecration of our Courts” gathering organized by right-wing activist Phillip Jauregui, who is promoting a Christian nationalist religious test for future Supreme Court nominees.
In this remarks at the Museum of the Bible, Ho did not directly mention Jauregui’s “biblical worldview” test, but he seemed to embrace its core principle by suggesting that federal courts should be in the business of upholding “biblical truth” and that being a faithful Christian—by his definition—is necessary to being a faithful judge. “In an ideal world, being a Christian actually should have nothing to do with being a judge,” Ho said. “But in a fallen world, being a Christian has everything to do with being a judge.”
Ho began his remarks by saying that he couldn’t say no to Jauregui’s invitation to speak “because I knew that you all were gathering here tonight to consecrate our nation's courts and to ask for God's mercy and justice to prevail all across our country,” adding, “So as a constitutionalist and as a Christian, I am compelled to stand with you all here tonight.”
Ho criticized the current Supreme Court for not upholding “the biblical truth that marriage is the union of one man and one woman.” He even complained that even though the Court ruled as he would have in an anti-trans case, the caption of the case used a pronoun that violated “the biblical truth that men are not women.”
Now, let me be clear, I am 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 no doubt lets their most cherished principles and values influence their views on government. So what exactly do we think is going to happen when Christians cede the field to everybody else? What do we think will happen when religion in America is demoted from its favored status to self-imposed exile? Who do you expect to speak on your behalf if you don't? …
So I would submit to you that we really have 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.
Who embodies the idea that values are transactional more than Trump and his religious-right supporters?
Ho also deployed the Christian-persecution rhetoric favored by religious-right leaders, pretending that there is an unconstitutional effort to keep devout Christians out of the judiciary. It’s not true of course, and it’s outrageous that he makes that claim while speaking at the invitation of a man who is explicitly promoting an unconstitutional test to keep everyone other than Christians acceptable to the religious-right off the bench.
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 protecting the Constitution in the courts without Christians in the courts. And make no mistake, that's what we're dealing with.
Whether devout Christians should be targeted for discrimination and exclusion from this process in violation of Article 6 of the Constitution. We've seen public officials, including judges, ridicule and disparage Christians as a threat to society, a threat to public safety, even going so far as to describe Christians as domestic terrorists.
Let's start with some first principles. In an ideal world, being a Christian actually 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, no matter the effect on the judge's standing or reputation in the community. And if that's truly what you're doing, there actually should not be a Christian interpretation of the text or an atheist interpretation of the text. There would just be a dutiful, faithful interpretation of the text.
But although we've been told that we're all supposedly originalists now, we know that in practice that is 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 the respect and the stature craved by so many judges.
Ho suggested that too many judges “who have spent their entire lives collecting gold stars from cultural elites” abandon their principles in response to criticism.
This is where faith plays a critical role in this fallen world. Being a faithful originalist, being a faithful constitutionalist is like being a faithful Christian. You have to be ready to be hated, to be booed by the crowd. And you have to be ready to ignore the ridicule and just do the work. …
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 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 will quickly find ourselves on the wrong path, will be seduced by worldly values, will desire the praise of man. That's the end of being a faithful Christian. That's also the end of being a faithful judge in this fallen world.
Ho seemed to be auditioning directly for a Trump nomination to a future Supreme Court vacancy. He strongly criticized justices for rejecting Trump’s effort to unilaterally eliminate the birthright citizenship guarantees of the 14th Amendment, saying the court should have deferred to Trump’s proclamation that immigration amounted to an “invasion.”
Ho also discussed what he called “biblically-based principles of judicial selection,” which also seemed to be positioning himself as someone who would meet those principles.
First, I think of the advice that Moses received about how to select good judges. The book of Exodus tells us to choose, quote, trustworthy men who hate dishonest gain. In other words, pick people who 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. The Book of Acts explains, quote, choose one of the men who have been with us the whole time. In other words, don't pick the Johnny-come-latelys, the ones who only showed up after it became socially acceptable and career enhancing to do so. Choose only from those who have been with us, 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.
Jauregui heads the Judicial Action Group and its foundation, which sponsored the National Consecration of our Courts event. He also heads the Center for Judicial Renewal, a project of the American Family Association’s political action affiliate. Last year he led prayers that God would intervene to stop judges from ruling against Trump.
