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In 1990, George H.W. Bush, listening to White House Chief of Staff John H. Sununu, nominated David Souter to the U.S. Supreme Court. Sununu, who as governor of New Hampshire had nominated Souter to the Granite State’s supreme court in 1983, assured Bush that Souter would be a “home run” for the conservative cause.
That’s not what happened.
Souter quickly lurched leftward, joining the 1992 court majority in Planned Parenthood vs. Casey that upheld the core holding of Roe vs. Wade. By the time of his retirement in 2009 — a decision that paved the way for President Obama’s nomination of Sonia Sotomayor — Souter had established himself as a reliable vote for the court’s liberal bloc. The conservative legal movement, which was ascendant at the time, responded with a unifying rallying cry: “No more Souters.”
That cri du coeur means more than, “no more liberals.” For conservatives, what it means — or at least what it once meant — is no more “stealth” selections to the nation’s highest court. There will be no more simply taking the John Sununus of Washington at their word. Rather, a nominee must have a demonstrable track record of integrity, courage, intellectual consistency and across-the-board excellence.
It’s unclear whether conservatives have ever learned their lesson. George W. Bush gave us the superb Samuel Alito, but he also gave us the fickle John G. Roberts. In his first term, President Trump made three picks to the high court; none are (yet) a Souter-like betrayal, but they also are not stalwarts like Alito and Clarence Thomas.
This summer, conservatives may have yet another opportunity to prove they have finally learned their lesson. If the opportunity arises, they better not blow it.
There is a very real chance Thomas or Alito retires after the current Supreme Court term ends (and there is an outside chance it could be Roberts). In gaming through the likelihood of a conservative nominee being confirmed by the Senate, keep in mind that that chamber is very much up for grabs this November. Democrat recapture of the Senate this fall would force the court’s conservative senior statesmen to hold onto their jobs for a few more years, placing a high-stakes wager on Republicans maintaining the White House and retaking the Senate in 2028.
That’s quite a gamble.
Given the abysmal historical track record of Republican judicial nominations, going all the way back to President Eisenhower’s 1956 nomination of William Brennan and President Nixon’s 1970 nomination of Harry Blackmun, Alito and Thomas would be forgiven for harboring skepticism about the desirability of an unforced retirement. But the retirement rumors throughout the conservative legal movement are swirling. Alito, who just turned 76, is generally viewed as the likeliest to step aside.
If there is a high court vacancy, the single best pick would be the man for whom I once clerked: James C. Ho of the U.S. Court of Appeals for the Fifth Circuit. There is no one else on the federal judiciary who has Ho’s track record of the very traits conservatives have claimed to most highly value in recent decades as they’ve committed themselves, at least rhetorically, to “no more Souters.” Multiple times, Ho has stood alone on the conservative-leaning Fifth Circuit for taking the boldest possible stance on an issue of great importance, such as in-state tuition for residents without legal status or Texas’s declaration of an “invasion” at the southern border. He is bold, fearless and unwavering.
The common knock on Ho is that he is too conservative, and perhaps too “strident.” It’s not necessarily that the votes in the Senate aren’t there, the critics say, but that he’d alienate the court’s moderate bloc if he were to be confirmed. It’s difficult to take this stated objection seriously. For decades, conservatives have argued for the importance of nominating justices “in the mold of Antonin Scalia and Clarence Thomas.” Being able to best mollify the likes of a Sandra Day O’Connor or an Amy Coney Barrett is not — and must not be — a part of the job description. Pick the best person for the job and let the interpersonal justice relationship chips fall where they may.
One frequently mentioned court hopeful is Ho’s Fifth Circuit colleague, Andrew Oldham. Oldham has the symbolic status of being a former Alito clerk, and he is widely perceived as coveting the seat. But Trump deliberately left Oldham off his 2020 Supreme Court list, and he did so because Oldham’s track record — even at that time — was somewhere between spotty and outright troubling. In 2010, he co-signed a letter to the Obama White House recommending that Elizabeth Warren be named the initial director of the Consumer Financial Protection Bureau. Since becoming a federal judge, it’s gotten considerably worse: Oldham has ruled against conservatives on crucial issues including abortion, vaccine mandates, gender ideology and illegal immigration.
This track record shouldn’t pass the laugh test. If Alito does retire and if the Beltway powers do (foolishly) deem it necessary to pick a former Alito clerk, then Steven Menashi of the U.S. Court of Appeals for the Second Circuit would be a much more inspired selection.
Thomas and Alito are both heroes of the American republic. For conservatives, that has the effect of raising the stakes even more, if one were to retire. Messing this up would be a catastrophic blunder, risking a generation of weak judicial rulings. This vacancy, if it arises, would be the time to double down like never before on “no more Souters.” And that means Justice James C. Ho.
Josh Hammer’s latest book is “Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West.” This article was produced in collaboration with Creators Syndicate. X: @josh_hammer
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Ideas expressed in the piece
- The article argues that James C. Ho represents an ideal Supreme Court nominee for conservatives seeking to avoid a repeat of past disappointments like Justice David Souter, who shifted leftward after his appointment. The piece contends that Ho has consistently demonstrated the boldness, fearlessness and unwavering principles that conservatives have long claimed to value in judicial nominees. The column suggests that Ho’s willingness to stand alone on the Fifth Circuit on significant issues, including those involving immigration and in-state tuition for undocumented residents, exemplifies the kind of judicial courage conservatives should demand. Furthermore, the article argues that concerns Ho is too conservative or “strident” should be dismissed, asserting that satisfying moderate justices should not factor into Supreme Court selection criteria. The piece also contends that Ho is a superior choice compared to other potential nominees, such as Fifth Circuit colleague Andrew Oldham, whose track record on conservative priorities is inconsistent and troubled.
Different views on the topic
- According to legal analysis, Ho’s recent judicial opinions have signaled a willingness to prioritize presidential loyalty over judicial independence and constitutional restraint[2]. The analysis contends that Ho wrote an opinion expressing the view that “it is not the role of the judiciary to check the excesses of the other branches,” which the criticism characterizes as contrary to foundational principles of checks and balances[2]. The piece argues that Ho appears to be positioning himself as a justice who would defer to executive branch interests in ways comparable to other Trump-aligned justices, rather than maintaining the judicial impartiality traditionally expected of federal judges[2]. Additionally, critics have noted that Ho, like the vast majority of Trump’s judicial nominees, is a member of the Federalist Society, an organization through which Trump has delegated significant influence over judicial selection[1][3].
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