Judge James Ho of the Fifth Circuit Will Likely Be President Trump's First Supreme Court Nominee -- And Here's Why

It is quite unusual for a Circuit Court Judge to openly take shots at a 7 Justice Supreme Court majority -- and be correct in doing so.

This is not a new thought. Fifth Circuit Judge James Ho was first mentioned as being on the proverbial “short list” for likely Supreme Court nominees by President Trump in Sept. 2020. But he is likely now at or very near the top of any such list for President Trump’s second term. Both Justices Thomas and Alito will be in their late 70s when the end of Trump’s second term approaches, with Alito having been on the Court more than 20 years, and Thomas more than 35 years.

Judge Ho, born in Taipei, Taiwan, would be the first Asian-American nominated to the Supreme Court — and quite likely the most conservative nominee to the Court since Justice Alito.

But, what is also noteworthy about Judge Ho is that he brings a different kind of conservatism to the Court because of his background. Consider the following:

• Chief Justice Roberts: Harvard College and Law School — Bush Administration — D.C. Circuit — Supreme Court.

• Justice Thomas: Holy Cross, Yale Law School — Reagan Administration — D.C. Circuit — Supreme Court.

• Justice Alito: Princeton, Yale Law School — Reagan Administration — 3rd Circuit (New Jersey) — Supreme Court.

• Justice Kagan: Princeton, Harvard Law School — Clinton Administration — Law School Faculty — Supreme Court.

• Justice Sotomayor: Princeton, Yale Law School — Manhattan prosecutor — New York federal judge — 2nd Circuit (NY) — Supreme Court.

• Justice Gorsuch: Columbia, Harvard Law School — D.C. law firm — Bush Administration — 10th Circuit (Denver) — Supreme Court.

• Justice Kavanaugh: Yale University and Law School — Bush Administration — D.C Law firm — D.C. Circuit — Supreme Court.

• Justice Barrett: Rhodes College, Notre Dame Law School — D.C. law firm — Law school faculty 16 years — 7th Circuit (Indianapolis) — Supreme Court

• Justice Jackson: Harvard College and Law School — DC law firms — DC Federal Defender’s Office — US Sentencing Commission — DC District Court — DC Circuit Court — Supreme Court.

Note that every Justice except Justice Barrett attended either Harvard or Yale Law Schools. Every Justice except Justice Sotomayor either practiced law in D.C. or served in a Presidential Administration — she was in New York. Four of the nine Justices came to the Supreme Court from the D.C. Circuit. Two others came from New York and New Jersey.

Now consider Judge Ho:

• Stanford University and University of Chicago Law School. From 2000 to 2005 he was in the Bush Administration and private practice in D.C. For one year he clerked for Justice Thomas on the Supreme Court.

• But he went to Texas in 2006, where he practiced law for 11 years, including two years as Texas Solicitor General, replacing Ted Cruz after his successful run for Senate. He was confirmed to the Fifth Circuit Court of Appeals in 2017.

That is more of a non-D.C. profile than any Justice other than Sotormayor — but her career was spent entirely in New York City, not Dallas.

With that background, just why is it that Judge Ho was mentioned as a SCOTUS nominee by Pres. Trump back in September 2020, and is likely now at the top of the list in 2025? Because of his willingness to do what he did recently in calling out the Supreme Court’s quasi-mendacity.

Following the Supreme Court’s April 7 ruling that Tren de Aragua (TdA) gang members wanting to fight their removal under the Alien Enemies Act proclamation must file such challenges in the district where they are confined, two Venezuelans — AARP and WMM — did so by filing habeas petitions in the Northern District of Texas on April 16, 2025.

AARP and WWM sought TROs to prevent their removal under the AEA, but the Trump Administration told the Court that it would not remove any TdA members with pending habeas cases. On that basis, the TROs were denied on April 17, 2025.

On April 18, 2025, other alleged TdA members held in the Northern District of Texas began receiving written “Notices” from ICE that the were subject to removal from the United States under the AEA proclamation. These individuals did not have habeas petitions filed, so the ACLU attorneys representing AARP and WMM went back to the District Court and filed an emergency motion for TRO on their behalf as “putative class members” and stating their intention to seek class certification.

April 18 was Good Friday, and Easter was only 48 hours away.

Sometime around 10:00 pm on April 18, the Supreme Court issued a stay to halt any deportations of TdA members under the President’s Proclamation. It did so as part of the Northern District of Texas case, but its Order was imposed nationwide.

What happened in between is the subject of competing “narratives” — one from the Supreme Court and one from Judge Ho.

On May 16 the Supreme Court issued an Opinion extending the stay it had imposed on April 18. In that Opinion there was a recounting of events on April 18, which was as follows:

• On April 17 the District Court denied the requested TROs.

• “Hours later” others subject to removal began receiving “Notices” of AEA removals “tonight or tomorrow.”

• On April 18 — at 12:34 am — ACLU attorneys sought a TRO for putative class members.

• At 12:48 pm, the attorneys asked for a ruling or a status conference by 1:00 pm.

• At 3:02 pm, they filed a Notice of Appeal to the Fifth Circuit based on a “constructive denial” by the district court’s failure to act. At about the same time they filed for an emergency TRO with the Supreme Court.

• The Supreme Court understood the Government position to be that it could begin removing detainees at midnight, as it only agreed that no putative class members would be removed on April 18, but reserved the right to remove detainees the following day.

• At 12:52 am (ET) on April 19, the Supreme Court ordered a stay on any removals so it could retain its jurisdiction over detainees while they were still in the country.

• The Fifth Circuit later denied the appeal based on a lack of jurisdiction since it was the Fifth Circuit’s view that the District Court was only given 42 minutes before the notice of appeal was filed, divesting the District Judge of jurisdiction.

• The Supreme Court ruled that the Fifth Circuit erred by dismissing the appeal, and should have treated the District Court’s failure to act as constructive denial of the TRO motion, finding that the District Court had 14 hours and 28 minutes — not 42 minutes — to address the request for relief, and had not acted.

• The Court noted that the potential that detainees removals were imminent — based on conclusions drawn in 4 affidavits submitted by the detainees and/or their attorneys — meant the District Court and the Fifth Circuit should have moved more promptly in addressing the merits of the requested TRO.

This Opinion was issued per curiam — none of the Justices were willing to put their name on it as its author.

Justice Alito filed a dissent from this Opinion. In his dissent he pointed out some problems with the above:

• After the denial of the TROs on April 17, later in the evening when the received information about notices being given by others, they made an ex parte call to the District Court, asked to speak with the judge, and when that failed they asked that the judge issue an order preventing deportation of detainees who were not yet part of the case.

• In an Electronic Order on the case docket, the Judge rebuked the ACLU attorneys for seeking an ex parte communication without contacting the Government, and directed them to file an emergency motion if they sought some form of relief. He stated in that Order that the Government should respond not more than 24 hours after the filing of any such motion.

• When the motion was filed, it did not mention any intention to seek relief in the Fifth Circuit or from the Supreme Court if the District Court awaited the Government’s response to the motion — the 24 hour period after filing.

• 14 hours had elapsed since the 12:34 am filing of the motion for an emergency TRO when the ACLU attorneys demanded a decision on the motion or status hearing by 1:00 pm, noting that they would file a Notice of Appeal at 1:30 pm — 42 minutes later — if no action was taken. The District Judge had given the Government another 10 hours to respond in its Order — without the ACLU attorneys objecting.

• The judge was studying the issue and doing research, AND awaiting the Government opposition when the ACLU attorneys filed the Notice of Appeal in the Fifth Circuit and request for Emergency Stay from the Supreme Court at 3:02 pm. This Notice of Appeal deprived the district court of jurisdiction to do anything.

• Justice Alito noted that in a later filing the District Judge stated he was studying the issues and was preparing to issue a ruling shortly after midnight — once he had received and reviewed the Government’s response which was to have been filed around that time.

Justice Alito then called into question whether there was any actual emergency — as claimed in the majority — by looking at the actual content of the affidavits submitted by the ACLU Attorneys. He noted the Government representation that two named plaintiffs — AARP and WWM — would not be deported while their habeas petitions were pending. The two affidavits submitted on their behalf were dated April 15 — two days prior to the Government representation that they would not be deported, so their affidavits were outdated and not relevant to whether there was an “emergency” at all on the night of April 18.

The remaining four affidavits were offered on behalf of still “unnamed members of an as-yet uncertified class.” Of those four affidavits, only one made any reference to the possible timing of the feared deportations that the ACLU attorneys were so adamant about halting. That affidavit was from an attorney who swore to what her client had told her in a telephone call — she couldn’t say it was actually her client since they were not face-to-face — that ICE had told them they would be deported “today or tomorrow” to Venezuela.

In other words, the most specific piece of evidence in the record was a double-hearsay statement that cannot be traced back to any specific government official. Outside of that, none of the remaining declarations said anything about imminent removal.…Other than these declarations, the court was left with unsupported attorney assertions in the application itself.

In other words, none of the “evidence” — the declarations under oath — confirmed the claim of urgency being made by the ACLU attorneys. It was only the comments by the attorneys written into the motion for an TRO that claimed an emergency basis to grant the TRO without allowing the Government to file an opposition.

This article started as being about Judge Ho in the Firth Circuit. There is where he comes in.

On May 20 — the next business day after the Supreme Court’s opinion, the Fifth Circuit issued an Order that the case would be reheard on remand by a new panel consistent with the Circuit’s rule.

Judge Ho had been part of the three member panel that had denied the appeal back on April 18 because the ACLU attorneys had not given the district judge sufficient time to decide the motion for TRO before filing their Notice of Appeal — the decision that was reversed by the Supreme Court. Judge Ho filed a comment “concurring” with the reassignment of the case to a new panel upon remand. In that comment he called attention to some additional facts beyond those noted by Justice Alito, and ignored by the majority in the per curiam opinion.

[A]ppellate courts have jurisdiction to review interlocutory orders of the district courts that “refus[e]” to enter an injunction. That includes orders that have “the practical effect of refusing an injunction.” Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981).

That is demonstrably not this case. The district court made amply clear to Petitioners that it stood ready to hear their requests for emergency relief—indeed, the court had already ruled on one such request the day before….

The court simply advised Petitioners that the Government would get 24 hours to respond before it would issue a ruling, one way or another.

Judge Ho then went about “unpacking” the difference in the views of the Supreme Court majority and Justice Alito in describing the events of April 18 — i.e., whether 42 minutes was at issue, or 14 hours and 28 minutes.

To get to 14 hours and 28 minutes (rather than 42 minutes), the Court was obviously starting the clock at 12:34 a.m., rather than 12:48 p.m. (when Petitioners told the district court for the first time that they wanted a ruling before the Government could respond).

But starting the clock at 12:34 a.m. not only ignores the court’s express instructions respecting the Government’s right to respond. It also ignores the fact that the Court is starting the clock at—12:34 a.m.

We seem to have forgotten that this is a district court—not a Denny’s. This is the first time I’ve ever heard anyone suggest that district judges have a duty to check their dockets at all hours of the night, just in case a party decides to file a motion.

Judge Ho was making the obvious and common sense point that when a party makes an electronic filing at 12:34 in the morning, no one is monitoring the docket. Let’s assume the District Judge or his staff first became aware of the filing at 8:00 am — that is nearly 7 1/2 hours of the 14 hours and 28 minutes of inaction the Supreme Court majority commented on. Inaction because the judge and his staff were sleeping, unaware of the filing.

It wasn’t that long ago when there was no 24 hour electronic filing system. If you needed to file documents after the business hours of the Clerk’s Office, you had to time-stamp them — with a video surveillance camera to confirm the time — and then put them in a drop box that the Clerk’s Office would clean out the following morning.

Judge Ho continued:

I have no problem making clear when a district court has abused its discretion and thereby jeopardized the reputation of the judiciary….

But this district judge conducted himself in a reasonable and indeed admirable manner. All inferior court judges expect to be reversed on appeal from time to time. But I’d wager that this judge never imagined he’d be reversed on grounds of laziness. (A brief glance at the docket suggests an extraordinarily diligent judge who somehow found the time to balance the needs of this challenging case—including a number of motions and orders throughout the week—all while presiding over a complex and sensitive criminal trial involving multiple child victims.)

The final parenthetical note that I have emphasized is something I have not seen commented on — or if it has been, it certainly hasn’t received enough attention. Too often, appellate judges who were not trial court judges fail to appreciate the amount of work daily that goes into being a trial court judge. The district judge here was not only dealing with this very difficult issue of first impression on the AEA with very little prior decisional authority, and the false claims of urgency being asserted by the ACLU attorneys demanding that he act in great haste, he was at the same time presiding over a criminal trial involving multiple child victims. Did the parties and the attorneys in that trial merit less consideration from him about how he allocated his limited time while their trial was ongoing?

Note what he did do for AARP and WMM. On a Thursday evening he directed them to file an emergency motion if they believed relief was necessary. He stated that the Government response would be due 24 hours after the filing — without regard for the fact that the Good Friday was the next day, and Easter Sunday was 48 hours away. He committed himself and his staff to ignoring those dates, and was prepared to deal with a request for emergency relief on an extraordinarily short timeframe, but providing the Government with an opportunity to respond — an opportunity that the ACLU attorneys did not object to when he entered his first order.

Only when they didn’t get what they thought they were entitled to on their preferred time table — without a government opposition being filed — did they put the District Judge on an artificial deadline of their own creation, and then acted prior to the expiration of the deadline they have never objected to.

Judge Ho did not need to point out any of this. The fact that he would go out of his way to criticize the Supreme Court’s mischaracterization of the facts as they were set forth in the per curiam opinion, in defense of his district court colleague, is why he’s quite possibly on the short list to be the next Trump nominee to the Court.