Appeals Court Judge James Ho: “if Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me too”
Responding to Georgetown Law cancel culture: “I stand with Ilya on the paramount importance of color-blindness. And that same principle should apply … [to] receiving an appointment to the highest court in the land…. And so, if Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me too.”
I don’t know if Georgetown Law School Dean Bill Treanor will be so foolish as to fire Ilya Shapiro over the tweets criticizing Joe Biden’s decision to restrict the pool of potential Supreme Court nominees to replace Stephen Breyer to black women.
Shapiro’s suspension severely damaged Georgetown Law and Dean Treanor more than Shapiro, who quickly became a free speech and academic freedom hero — even for people who are from the left and disagree with his politics and tweets. We covered the hysterical cancel mob and some of that pushback in our prior coverage:
- Profile In Cowardice: Georgetown Law Dean Bill Treanor Suspends Conservative Legal Scholar Ilya Shapiro
- Georgetown Law Student Protesters Demand Ilya Shapiro Firing, Reparations, Place To Cry, End To “Originalist” Center
- Stifling Debate And Purging Dissenters At Georgetown Law Over Ilya Shapiro
- Ilya Shapiro To Whoopi: “Let’s Talk … We Have To Disrupt This Toxic Cultural Moment In Favor Of Free Speech”
- Prof. Glenn Loury’s “Ilya Shapiro Moment” – Diversity, Equity and Inclusion “at the US Supreme Court is a very bad idea”
Outside of the academic bubble, most Americans agree with Shapiro that it was wrong to limit the pool based on race and gender.
Many students object to the cancel mob, but of course, some speak out only anonymously to avoid becoming a target themselves (sounds familiar). Shapiro also received support from over 100 alumni:
I am proud to be a signatory of this letter, signed by 136 Georgetown Law alumni, sent this morning to the Dean of the law school, urging that he stop the investigation of Ilya Shapiro & take him off administrative leave – as those actions are inconsistent w/academic freedom. /1 pic.twitter.com/IZU8woftKN
— Leslie McAdoo Gordon (@McAdooGordon) February 8, 2022
And Shapiro just received support from U.S. Court of Appeals Judge James Ho, who should be at or near the top of any SCOTUS short list for the next Republican president.
Judge Ho has been a critic of cancel culture, particularly based on racial equity dogma. I covered his position in Appeals Judge Slams Critical Race Theory: “Prohibiting racial discrimination means we must be blind to race”. From Judge Ho’s concurring opinion (emphasis added):
I concur in the judgment and in all but Section III.A of Judge Haynes’s opinion. With respect to the intentional discrimination claim, we all agree that this case turns on geography, not race. With respect to the disparate impact claim, we all agree that remand is appropriate. I write separately to explain why I share Judge Jones’s concerns about unelected agency officials usurping Congress’s authority when it comes to disparate impact theory.
Congress enacted Title VI of the Civil Rights Act of 1964 to prohibit intentional racial discrimination—not to restrict neutral policies untainted by racial intent that happen to lead to racially disproportionate outcomes. See 42 U.S.C. § 2000d; Alexander v. Sandoval, 532 U.S. 275, 280–81 (2001) (“[§ 2000d] prohibits only intentional discrimination,” not “activities that have a disparate impact on racial groups”).
There’s a big difference between prohibiting racial discrimination and endorsing disparate impact theory. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation 78 (1994) (disparate impact is “a significant leap away from” intentional racial discrimination). It’s the difference between securing equality of opportunity regardless of race and guaranteeing equality of outcome based on race. It’s the difference between color blindness and critical race theory. Compare Martin Luther King, Jr., I Have A Dream: Address to the March on Washington for Jobs and Freedom (Aug. 28, 1963) (“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”), with Ibram X. Kendi, How to Be an Anti-Racist 18 (2019) (“A racist policy is any measure that produces or sustains racial inequity between racial groups.”); see also ‘When I See Racial Disparities, I See Racism.’ Discussing Race, Gender and Mobility, N.Y. Times (Mar. 27, 2018), available at https://www.nytimes.com/interactive/2018/03/27/upshot/readerquestions-about-race-gender-and-mobility.html?smid=tw-share.
Prohibiting racial discrimination means we must be blind to race. Disparate impact theory requires the opposite: It forces us to look at race—to check for racial imbalance and then decide what steps must be taken to
advance some people at the expense of others based on their race. But racial balancing is, of course, “patently unconstitutional.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 723 (2007). Accordingly, “serious constitutional questions . . . might arise” if “[disparate impact] liability were imposed based solely on a showing of a statistical disparity.” Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 540 (2015). See also Ricci v. DeStefano, 557 U.S.557, 594–96 (2009) (Scalia, J., concurring) (same).
So these are not frivolous concerns of discrimination that we’re talking about here. In fact, for disparate impact advocates, requiring discrimination may not be a problem—it may be the whole point. To quote one leading critical race theorist, “[t]he only remedy to past discrimination is present discrimination,” and “[t]he only remedy to present discrimination is future discrimination.” Kendi, supra, at 19.
It’s said that the road to hell is paved with good intentions. That’s why we have laws on the books, like Title VI, that simply forbid the “sordid business” of “divvying us up by race”—no matter what our intentions. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part)….
So public officials may sincerely believe that race-conscious policies are beneficial rather than corrosive. But the American people have never been the blindly trusting sort. Citizens may fairly wonder how officials can condemn race-neutral policies as racist and defend explicitly race-conscious programs as inclusive.
In an appearance at the Georgetown Law Federalist Society, Judge Ho gave an impassioned defense of Shapiro, as first reported by Nate Hochman at National Review:
Federal judge James C. Ho delivered a robust defense of Ilya Shapiro on Tuesday in a speech at Georgetown Law, which recently suspended the respected legal scholar over a poorly worded tweet.
“I stand with Ilya,” Ho declared.
The subject of his address was a surprise to the audience. The judge on the Fifth Circuit Court of Appeals had been slated to give a lecture titled “Fair Weather Originalism: Judges, Umpires, and the Fear of Being Booed,” in an event organized by the law school’s chapter of the Federalist Society. At the outset, according to prepared remarks exclusively obtained by National Review, Ho said he “was scheduled to talk” about originalism, “but I hope you won’t mind that I’ve decided to address a different topic today instead.”
Ho continued, “I’m going to spend my time today talking about Ilya Shapiro.” …
The first half of the speech defended Shapiro’s right to make controversial comments on the grounds that the freedom of speech is “the foundation of our entire adversarial system of justice,” in Ho’s description. “You must understand your opponent’s views in order to fully understand, and thus powerfully defend, your own views,” he said….
But the second half of Ho’s speech went a step further. Ho defended the substance of Shapiro’s tweets, maintaining that equality of opportunity — which he described as “fundamental to who we are, and to who we aspire to be, as a nation” — was the principle that Shapiro was originally defending. “Ilya has said that he should have chosen different words. That ought to be enough,” Ho said. “I have no doubt — zero doubt — that Ilya did not intend anywhere near the worst interpretation that has been applied to his remarks.”
I have obtained the full prepared text, which apparently will be published at some point. Here are some excerpts (emphasis added):
First, what should Georgetown do?
I’ll begin with this observation: There are many, many people who love this country deeply—who want it to succeed, and to continue succeeding—who abhor racism with every fiber of their being—and who fall on both sides of this debate.
I would submit that, if I were a law student today, and I strongly disagreed with remarks made by someone who had just recently been hired by my law school, the last thing I would do is to call for that person to be fired….
The natural response, of course, is to point out that Georgetown is a private institution—not a government actor subject to the First Amendment. And that is obviously correct.
But freedom of speech is much more than just a constitutional principle. It’s also a cultural principle. And even more than that, it’s the foundation of our entire adversarial system of justice—one that each of you as law students is spending good money, and certainly a whole lot of time and heartache, to be a part of. And that system is premised on the principle that, in any dispute, both sides deserve zealous legal representation. Because that is the best way to ensure that the truth will out.[fn]
So cancel culture is not just antithetical to our constitutional culture and our American culture. It’s completely antithetical to the very legal system that each of you seeks to join.[fn]
* * *
I will now turn to the substance of Ilya’s remarks.
Let me begin by saying that, if you’re looking for evidence of racism and bigotry in the world, unfortunately it’s not difficult to find. In my own life’s work—and in my own life—there have been plenty of situations when a person has made the deliberate and unfortunate decision to express disrespect and even outright bigotry toward another person, based on nothing more than their race, or religion, or sexual orientation. And when faced with such situations, I’ve spoken out about it—both before and after I joined the bench.[fn]
But it’s precisely because I’m so aware of such stark examples of bigotry and racism that I’m also sensitive to the fact that there are other, very different kinds of situations, when there are two sides to the story.
Ilya has said that he should have chosen different words. That ought to be enough.
After all, compare what he said to what courts say when they talk about the case for color-blindness.
To take just two examples—although there are many others: Look at what Justices Rehnquist and Brennan said in their dissent from the denial of cert in Ashley v. City of Jackson, 464 U.S. 900 (1983) (Rehnquist, J., dissenting from the denial of cert). Or what Chief Justice Rehnquist wrote on behalf of the Court in Martin v. Wilks, 490 U.S. 755 (1989).
In both cases, the justices were describing lawsuits challenging racial preferences. They said that the employees objected because the employers were choosing, and I quote, “less qualified” individuals of a particular race—and that they were doing so precisely because of their race.[fn]
So make no mistake: If there is any racial discrimination in statements like these, it’s not coming from the speaker—it’s coming from the policy that the speaker is criticizing.
That’s the unfortunate irony in this whole discussion. If you asked Ilya, I am sure he would say that he’s the one standing up for racial equality, and that his opponents are the ones who are supporting racial discrimination. You don’t have to agree with him—but it’s obvious that’s where he’s coming from. And yet I don’t hear Ilya trying to punish others for taking a different view on racial equality.
I’ve known Ilya for over 20 years. We graduated from the same law school. We first met because we were both honored to receive the same scholarship from a wonderful organization known as the Tony Patiño Fellowship. And our paths have crossed repeatedly ever since.
I have no doubt—zero doubt—that Ilya did not intend anywhere near the worst interpretation that has been applied to his remarks.
* * *
I don’t say this because I think race is no longer an issue in our country. I’ve received racist hate mail and racially disparaging remarks because of positions I’ve taken in my career. I’ve been treated differently because of the race of the woman I’m married to. And I also remember, back in high school, my college admissions adviser telling me that my grades, SAT scores, and activities were all strong enough to get me into my top choice of schools—if I wasn’t Asian.
Now, I’m not saying any of this here to complain. Whatever negative experiences I’ve had, they pale in comparison to my many blessings living in this great country. I was not born an American. But I thank God every day that I will die an American.
My point is just that I don’t come to my views because I think racism is behind us. Rather, I come to my views precisely because racism is not behind us. The last thing we should do is divide people by race. The last thing we should do is suggest that the racists are right. We don’t achieve equality of opportunity by denying it to anyone—we achieve it by securing it for everyone.
So make no mistake: It would be profoundly offensive—and un-American—to tell the world that you’re restricting a judgeship to members of only one race. It’s offensive to people of other races. And it’s offensive to people of that race—because you’re suggesting that the only way they’ll get the job is if you rig the rules in their favor.
* * *
So let me be clear: I stand with Ilya on the paramount importance of color-blindness. And that same principle should apply whether we’re talking about getting into college, getting your first job, or receiving an appointment to the highest court in the land.
Racism is a scourge that America has not yet fully extinguished—and the first step in fighting racial discrimination is to stop practicing it.
That’s all Ilya is trying to say. That’s all he has ever tried to say.
And so, if Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me too.
Thank you for listening. I’m honored to be here.
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