One of President Trump’s new judicial appointments debuted in a big way on Wednesday in a campaign-finance case, showing that the president is serious about keeping his promise on the sort of judges he appoints, and that his vetting system for nominees is working brilliantly. And liberals are throwing a fit.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit recently decided Zimmerman v. City of Austin, holding that the city’s individual limit of $350 during an election cycle does not violate the First Amendment right of citizens to participate in politics. The court then denied a petition for rehearing en banc by a 12-2 vote, in which all 14 judges currently on the court would rehear the case.
Judge Jim Ho is one of the dissenting judges, who was confirmed to the Fifth Circuit last December as the record-breaking twelfth appellate judge to confirmed during a president’s first year. His dissent was joined in large part by Judge Edith Jones, revered as an iron-willed conservative judge who had been a finalist for the Supreme Court in 1989.
“The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders,” Judge Ho began, citing an opinion from Justice Clarence Thomas, the rock-ribbed originalist jurist for whom Ho clerked years ago. “This case reinforces this regrettable pattern.”
There is no more quintessentially American principle than the right of the people to participate in their own governance. The First Amendment protects the freedom of speech, and that freedom emphatically includes the right to speak about who our elected leaders should not be. This foundational American liberty includes not only the freedom to engage in one’s own political speech, but also the freedom to support like-minded candidates for office.
“The First Amendment therefore protects campaign contributions,” he said, citing Supreme Court precedent.
“Campaign contributions are not personal gifts—they are donations to support and defray the costs of campaign speech,” Ho continues. “Accordingly, the Supreme Court has carefully delimited the narrow circumstances in which the government may permissibly interfere with campaign contributions.”
Campaign contributions in exchange for favors is outright corruption, and is a crime. But, Ho warned, “the risk of quid pro quo corruption must be established by evidence—courts may not accept mere conjectureas adequate to carry a First Amendment burden.”
He quoted Justice Thomas from a case involving $250 contribution limits, where the justice wrote, “I cannot fathom how a $251 contribution could pose a substantial risk of securing a political quid pro quo.”
“The district court should have heeded Justice Thomas’s common-sense observation—particularly because the record is devoid of any evidence to the contrary,” Ho reasoned, looking to Austin’s similarly low contribution limit.
“As any proponent of campaign finance regulation will tell you, a donor with suspect intentions can circumvent campaign contribution limits—and achieve his nefarious goals—simply by making independent expenditures instead,” Ho added, explaining why these contribution limits do not even accomplish their intended goals. “So either the government regulates everything—or there’s no point in regulating any of it.”
The judge on the New Orleans-based appeals court acknowledged that there is a lot of money in modern campaigns. “But if you don’t like big money in politics, then you should oppose big government in our lives,” Ho goes on. “When government grows larger, when regulators pick more and more economic winners and losers, participation in the political process ceases to be merely a citizen’s prerogative—it becomes a human necessity.”
“This is the inevitable result of a government that would be unrecognizable to our Founders,” he concludes, citing as an example NFIB v. Sebelius—the Supreme Court case upholding Obamacare.
The Economist’s Supreme Court correspondent, Steven Mazie, balked at the Obamacare reference, tweeting that Ho’s opinion was “SCOTUSshaming” that implicitly criticized Chief Justice John Roberts, who was the deciding vote in that case.
Far from it, Ho seems to cleverly agree with Roberts on the key point. In NFIB, Roberts rejected the Obama administration’s argument that it had authority under the Constitution’s Commerce Clause to compel people to buy health insurance, writing, “That is not the country the Framers of our Constitution envisioned.”
“The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding,” Roberts continued. That legal principle was also declared in a separate opinion by the four dissenting justices in NFIB: Justices Scalia, Kennedy, Thomas, and Alito.
In other words, with five justices onboard, it was part of the Supreme Court’s holding in NFIB. Ho was not “shaming” the Supreme Court. Instead, he was citing it as controlling authority over him, and in doing so acted as a faithful subordinate judge on a lower court.
Conservatives are cheering. “What a debut!” wrote former Scalia law clerk Ed Whelan, a leader of the Federalist Society. Professor David Bernstein of Scalia Law School at George Mason University agreed, tweeting out the quote about big government in our lives.
Liberals are predictably reacting differently. The ultra-left ThinkProgress condemned Ho’s opinion as “a sweeping assault,” calling it “a doozy.” The far-left People for the American Way issued the headline, “Confirmed Judges, Confirmed Fears: Trump Circuit Judge Shows His Extremism in Money in Politics.”
Try the decaf. Far from vindicating the shocked outrage leftists are claiming, Judge Ho’s opinion is exactly what President Trump promised to deliver through his judicial picks.
White House Counsel Don McGahn, the president’s top White House adviser on judges, explained to CPAC in March that the president wants nominees who will “stand strong in the face of adversity,” and not be swayed by polls or editorials.
That assurance is nothing new. McGahn spoke at the November 2017 annual convention of the Federalist Society, saying that President Trump is determined to keep “nominating and appointing judges who are committed originalists and textualists.”
McGahn added that they wanted a list of nominees who are “kind of too hot for primetime, the kind that would be really hot in the Senate, probably some people who have written a lot.” That is important, McGahn explained, so that, “We can get a really good sense of their views … the kind of people who would make some people nervous.”
That’s exactly what they got in Ho, who has written on the Second Amendment, racial preferences, national security powers, and a host of other issues—including campaign finance, back when he was a law student.
But Ho also has the credentials McGahn told CPAC they look for. A graduate of a Top-10 law school who clerked for Justice Thomas, served in the elite Office of Legal Counsel at the Justice Department, later served as Texas solicitor general, and then become a partner at a global law firm, Ho’s combination of intellect and commitment to originalist interpretation of the Constitution was on full display in his inaugural opinion as a judge on the Fifth Circuit.
The White House also has expert outside advisers like Leonard Leo, who assists McGahn’s team in identifying nominees who combine such capability with a constitutional conservative philosophy. Many of them have pedigrees like Ho’s.
With over a dozen of President Trump’s appellate judges now on the bench, Americans can probably expect more judicial opinions that unapologetically embrace an originalist view of the Constitution—a view that also polls well with the voters. The president is fulfilling his promise and assembled a team that is making it happen.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.