The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

Politics

Judge James C. Ho's Speech On "Judicial Courage" and Judicial Selection

"Nobody actually reads what people have said and written. And that’s why mistakes are made. Because if nobody reads, then it’s not about who would do the job best. It’s about who wants the job most."

Josh Blackman | 7.29.2026 8:00 AM

Last week, Judge James C. Ho of the Fifth Circuit delivered a stirring address at a First Liberty Institute gathering. I was very impressed by the speech, and asked Judge Ho for permission to publish his remarks. He kindly agreed. The theme of the event was "Judicial Courage," and Judge Ho discusses how courage should impact judicial selection. I will include the full post below the jump, but here is an important excerpt:

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.  As the Book of Acts explains, "choose one of the men who have been with us the whole time."

In other words, don't pick the Johnny-come-latelies—the ones who only showed up after it became socially acceptable and career enhancing to do so.  Choose only from those 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.

So long as you've narrowed the pool that way, then it really doesn't matter who gets it—as long as they get it.

That's a far cry from how the process often plays out.  There's a saying in my chambers:  Nobody reads.  It's true in litigation.  And it's true in judicial selection, too.

Nobody actually reads what people have said and written.  And that's why mistakes are made.  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's exactly wrong.  It's exactly backwards.  Because I want the people who are too busy to campaign—who just want to get the work done and then go home to their families.

Here is the full speech:

I'm profoundly humbled that you've asked me to share my thoughts on the theme of tonight's discussion:  "Judicial Courage."

But if I'm being candid, I'm also a little embarrassed.  That's for two reasons.

* * *

First, the word "courage."  When I think of the word "courage"—well, I can think of a lot of people who show courage.  But frankly, none of them are judges.

When I think of "courage," I think of soldiers, police officers, firefighters—people who put their lives on the line.  But federal judges—we don't even put our jobs on the line.

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

But federal judges enjoy life-tenure—a guaranteed annual salary that puts us easily in the top ten percent of all Americans—and smart, driven law clerks to help us do the work.

So for judges, affirming the truth should be easy.  For judges, it's not courage—it's merely duty.  It's our duty to follow the law in every case—regardless of whether our decision is popular or divisive.

Now, I'm not saying that it's fun to be criticized.  Nobody likes to be booed.  But it's the job we signed up for.  And let's be honest, it's the job that many judges lobbied for.  And it's why the Constitution affords us with life tenure—so that we can take the arrows.

If that's not enough protection, if you can't deal with the criticism, that's okay—you can resign.  Trust me—you'll do just fine in the private sector.  It's life tenure—not a life sentence.

But if you're going to do the job, then do the job.

* * *

There's a second reason I find it awkward to talk about "judicial courage."  As we celebrate our Nation's semiquincentennial, consider how the judiciary is doing, when it comes to upholding certain self-evident truths.

For example:  What about the Biblical truth that marriage is the union of one man and one woman?

Justice Thomas has called on the Supreme Court to restore the traditional definition of marriage—and the........

© Reason.com