Judge James C. Ho Addresses Judicial Courage and the Judicial Selection Process

Last week, Judge James C. Ho of the Fifth Circuit gave a moving talk at a gathering hosted by the First Liberty Institute. I was genuinely impressed by his remarks and asked for permission to publish them; he kindly granted it. The event centered on the notion of “Judicial Courage,” and Judge Ho reflects on how that courage should shape how judges are chosen. I’ll share the full post beneath the jump, but here is a pivotal excerpt:

Second, reflect on the guidance Paul offered in his first letter to Timothy about selecting a capable leader. Do not select “a recent convert, or he may become conceited and share the same judgment as the devil.”

Instead, recall what happened when Judas needed to be replaced among the twelve. As the Book of Acts states, “choose one of the men who have been with us the entire time.”

In short, don’t pick latecomers—the ones who only joined once it became socially acceptable or advantageous for their career. Choose only from those who were present from the start, even when it was difficult—those who stayed with us not out of convenience, but out of conviction.

So long as that is the criterion, then it hardly matters who ultimately gets the role—as long as they understand it.

That stands in stark contrast to how the process often unfolds. There’s a saying in my chambers: Nobody reads. It’s true in litigation. And it’s true in the process of judicial selection as well.

Nobody actually reads what people have said and written. And that’s why mistakes occur. 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 is precisely the wrong approach. It’s the wrong direction entirely. Because I want people who are too busy to run campaigns—who simply want to do the work, then return to their families.

Here is the full speech:

I am deeply honored that you invited me to share my thoughts on tonight’s theme: “Judicial Courage.”

But to be frank, I’m also a touch embarrassed. There are two reasons for that.

* * *

First, the notion of “courage.” When I consider this word, I can think of many who display it. Yet, frankly, none are judges.

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

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

But federal judges enjoy life tenure—a secure annual salary that places us among the top ten percent of earners—and the support of bright, motivated law clerks to assist with our duties.

Thus for judges, upholding the truth should be straightforward. For judges, it isn’t about courage—it’s a duty. It is our duty to apply the law in every case—whether the result is popular or polarizing.

Now, I’m not saying it’s pleasant to be criticized. Nobody relishes boos. But it’s the job we agreed to undertake. And let’s be honest, it’s a job many judges lobbied for. That’s why the Constitution grants life tenure—so we can endure the arrows.

If that protection isn’t enough, if you can’t handle the criticism, that’s fine—you can step down. Believe me—you’ll fare fine in the private sector. It’s life tenure, not a life sentence.

But if you’re going to perform the role, then perform the role.

* * *

There’s a second reason I feel uneasy about discussing “judicial courage.” As we mark the nation’s semiquincentennial, consider how the judiciary fares in upholding certain obvious truths.

For instance: the Biblical truth that marriage is the union of one man and one woman?

Justice Thomas has urged the Supreme Court to reaffirm the traditional definition of marriage—and the longstanding precedent backing that institution—by overturning the Obergefell decision. Yet that occurred in a solo concurring opinion. We are nowhere near the four votes needed to grant a cert petition—or the five required to decide on the merits.

What about the Biblical truth that men are not women?

A few weeks ago, in West Virginia v. B.P.J., the Court got the law right. But I would add an asterisk to this one. Because in the decision’s caption, 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 brief in opposition. It seems to have been added by someone at the Court for some reason. That stands in contrast to my own experiences as a Supreme Court litigator many years ago.

We may never know who inserted the pronoun. But we do know who did not. In that same case, Justice Thomas noted that “men … are not women …, even if they believe that they are.” And to claim otherwise is to demonstrate indifference to the truth. But that was again in a solo concurring opinion.

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

Earlier this year, the Court declined to enforce longstanding limits on chemical abortion, despite strong dissents from Justices Thomas and Alito.

Or what about the fundamental truth that foreign governments weaponize illegal immigration to damage other nations?

For decades, administrations from both parties have warned about using illegal immigration as a weapon of war. And judges are supposed to defer to presidential declarations of an invasion. So the Supreme Court should have upheld the President’s birthright citizenship order in full based on that invasion declaration. But the Court did not mention the invasion declaration anywhere in its disappointing decision last month.

* * *

Justices Thomas and Alito have addressed the issue of judicial courage repeatedly. They have noted—time and again—that too many judges fear applying basic truths and fulfilling their duties because of concerns about reputation and criticism.

So how did we arrive at this state? And what can we do about it?

I recently encountered a survey exploring Americans’ views on religion in the country in 2025.

One survey question asks whether people agree with this statement: “Christians should not let their religious beliefs guide their political choices.”

A majority of Americans agreed with that statement.

Even more troubling to some is that a third of Evangelicals also agreed—meaning they could not support the idea that Christians should apply their deepest beliefs and values when evaluating their government.

To be clear, I’m not here to weigh in on theology. I’m a judge, not a pastor.

But we should not pretend that Christians stepping back from public life has no consequence.

Everyone else in America clearly lets their core beliefs shape their views of government.

So what happens if Christians relinquish the field to others?

What happens when religion in America is downgraded from favored status to a self-imposed exile?

Who will advocate on your behalf if you don’t?

From my observation, Washington’s political class—those self-appointed “experts”—often decide a position or whom to back for one of two reasons: they want to advance themselves, or they want to be paid.

So the choice is simple: Christians can engage, or they can abandon their role and leave it to the so-called experts.

But the consequences will be stark: decisions will be shaped by biblical principles or by business interests. We can place our trust in leaders who regard our values as transcendent, or in leaders who treat them as transactional.

* * *

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

But as someone who has studied the judiciary and the process of selecting judges for a long time, I do have thoughts on how to foster courage in the courts—whether Christians are represented in the courts matters.

And do not mistake: this is the challenge we face. Are devout Christians to be singled out for discrimination and exclusion from the process, in violation of Article VI of the Constitution?

Let’s begin with fundamentals. Ideally, Christian faith should not determine one’s fitness for the bench. Yet in this fallen world, being a Christian profoundly affects one’s ability to serve as a judge.

Being an originalist means adhering to the text and its original meaning, regardless of the outcome—and regardless of how it affects a judge’s reputation in the community.

If that is truly your approach, then there shouldn’t be a Christian or an atheist reading of the text. There should be a single, faithful interpretation of the law.

But although many now claim to be originalists, in practice that’s not fully true. Originalism may be tolerated in polite society—but only so long as it yields results despised by the cultural elites who control national discourse and who dispense the prestige and respect many judges crave.

Chief Justice Roberts once likened judges to referees. I accept the analogy, but I draw a far more cautionary lesson from it.

There are probably sports fans here who know about home-field advantage.

Research on home-field advantage shows that it’s real—the referees are often swayed by the crowd’s boos.

Various studies show umpires and referees across sports altering calls to avoid audience jeers. There’s even a term for this: “working the refs.”

And the concern is all the stronger when it comes to judges.

After all, most people don’t know the names of referees. The boos are brief. They fade quickly. But the elites know how to boo and discredit judges for a lifetime. Judges who have spent years collecting praise from cultural elites will adjust accordingly.

That is where faith becomes crucial in this imperfect world. Being a steadfast originalist is like being a faithful Christian: you must be prepared to be hated, to endure the crowd’s derision, and to persevere with the work, as Nehemiah 4 reminds us.

As Christians, we understand that God wants us to face challenges—and, moreover, to push back. I think of passages like Exodus 14 and Numbers 32. We should be ready, even eager, to bear the heat for our beliefs.

But you won’t do that if you measure everything by earthly concerns.

As Christians, we acknowledge that this is not our permanent home. Hebrews 13:14 tells us we are “strangers here, eagerly awaiting a better country, that is, a heavenly one.”

Our time here is brief. If we treat this world as home, we’ll easily be led astray by worldly values and crave human praise.

That would mark the end of faithful Christian conduct. And it would also spell the end of faithful judges, in this fallen world.

* * *

As I near a decade on the bench, I often recall the fifteen years I spent participating in the judicial-selection process—through the Justice Department, the Senate Judiciary Committee, and the Federal Judicial Evaluation Committee in Texas.

That time taught me three biblically grounded principles for selecting judges.

First, think of the guidance Moses received on picking good judges. The Book of Exodus directs us to choose “trustworthy men who hate dishonest gain.”

In other words, pick people you can rely on to rule fairly, grounded in the law and the law alone. Ruling based on whether one is favored by cultural elites is the surest path to dishonest gain.

Second, consider the admonition Paul gave in his first letter to Timothy about selecting a good leader. Do not choose “a new convert, lest he become conceited and fall under the same judgment as the devil.”

Instead, recall what happened when it was time to replace Judas among the twelve. As the Book of Acts recounts, “choose one of the men who have been with us the entire time.”

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

As long as you narrow the pool that way, it really doesn’t matter who gets the job—as long as they understand it.

That’s a far cry from how the process often unfolds. There’s a saying in my chambers: Nobody reads. It’s true in litigation. And it’s true in the process of selecting judges, too.

Nobody actually reads what people have said and written. And that’s why mistakes happen. 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 is precisely wrong. It’s utterly backwards. Because I want people who are too busy to campaign—who simply want to do the work and then return home to their families.

Third, Jesus rejected the arrogance that often accompanies leadership. He urged His followers to prefer humility over elite status.

In Matthew 20, He observed that “the rulers of the nations wield authority over them. Not so with you. Instead, the greatest among you should be your servant … just as the Son of Man came not to be served, but to serve.”

In other words, choose people who will use power to serve others, not themselves. People who are prepared to be judges—not those desperate to become judges. People whose aim is not to sit on a bench, but to enter into a higher purpose.

And if that is truly your aim, you will learn this crucial truth: Serving others often means standing alone.

Deuteronomy 20 remains one of my favorite Bible passages. It teaches that being outnumbered in battle is acceptable if your cause is righteous.

When I first took the bench, I didn’t foresee how frequently I would publish not only dissents but solitary opinions—sometimes many dissenting votes against the majority, including single-authored opinions.

And not only in the realm of opinions. A while back, the climate at some elite law schools grew so hostile that I decided to stop hiring law clerks from certain schools. I believed that if enough judges joined the effort, the schools would change their ways. But only a few joined.

Since then, law students frequently ask why more judges haven’t joined the boycott. You’d be surprised by how many judges have told me: “I love what you’re doing. Please keep at it. But I can’t join you. If you can bring in more judges, then I’ll join.”

Look, I understand. There’s safety in numbers. It’s daunting to stand alone, or within a small minority. But Deuteronomy 20 reminds us that when you go to war, don’t fear an army larger than yours. Focus on choosing the right side, and the rest will follow.

Let us heed Justice Thomas’s words: North remains north. Right remains right. Even if you stand alone.

Remember Jesus’ instruction to His disciples in John 15:18: “If the world hates you, know that it has hated me before it hated you.”

* * *

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

We need men and women who will remember the message of Hebrews 11: that we are “sojourners and strangers on earth”—desiring a better, heavenly country.

And when our time here ends, we hope and pray that we can tell ourselves and our Lord—as in Second Timothy 4—that we fought the good fight, finished the race, and kept the faith.

May God bless each of you. And may God bless America.

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