WASHINGTON (CN) – The Senate on Thursday confirmed its second judge to the 5th Circuit in as many days, giving President Donald Trump his 12th appointment to a federal appellate court.
James Ho cleared the Senate on a 53-43 vote on Thursday afternoon and will now join Judge Don Willett, whom the Senate confirmed yesterday, on the New Orleans-based court handling appeals from Louisiana, Mississippi and Texas.
Sens. Joe Donnelly, Heidi Heitkamp and Claire McCaskill broke with their Democratic colleagues and voted for Ho.
Born in Taiwan in 1973, Ho came to the United States with his parents when he was a child. He will be the first Asian-American judge to serve at the 5th Circuit.
A member of the conservative Federalist Society, Ho clerked for Supreme Court Justice Clarence Thomas and served as chief counsel to Sen. John Cornyn, R-Texas, on the Senate Judiciary Subcommittees on Immigration and the Constitution.
Ho also served as the Texas solicitor general from 2008 to 2010, before taking over as a partner at the Dallas firm Gibson Dunn & Crutcher. Ho now co-chairs the firm’s appellate and constitutional law practice group.
During his time as the state’s solicitor general, Ho defended the University of Texas’ affirmative action program, with the Supreme Court eventually upholding the scheme after multiple rounds of litigation.
Democrats pressed Ho on the time he spent at the Justice Department’s Office of Legal Counsel during the Bush Administration.
A controversial memo that justified the Bush administration’s use of torture during the War on Terror cited a document Ho authored while at the department, and while the so-called torture memo is public, Ho’s work is not.
Sen. Dianne Feinstein, D-Calif., unsuccessfully pressed the Justice Department to release Ho’s memo, and Ho said he is unable to release the document himself because it is covered by attorney-client privilege.
“I wrote that as an attorney in the Justice Department, it is my understanding that the document is subject to privilege so it is not up to me to decide who should get to see that memo,” Ho said at his nomination hearing last month.
Ho also faced questions about his record as Texas’ solicitor general. Ho represented Texas when it intervened in a divorce proceeding of a gay couple who married in Massachusetts, but lived in Texas when they sought to end the marriage.
Texas at the time had a law against same-sex marriage and therefore argued the couple could not start a divorce proceeding because they were never officially married.
A trial court initially found the state’s marriage law violated the 14th Amendment, but the Texas Court of Appeals sided with the state and upheld the same-sex marriage ban. The U.S. Supreme Court later decided in Obergefell v. Hodges there is a constitutional right to marriage.
Ho told Feinstein in an answer to questions submitted in writing after his nomination hearing his past representation of the Texas law would not be an issue if he was confirmed to the federal bench.
“The U.S. Supreme Court spoke definitively on the constitutional right to same-sex marriage in Obergefell v. Hodges and Pavan v. Smith,” Ho wrote. “If I am so fortunate as to be confirmed to be a federal judge, I would follow the precedents of the U.S. Supreme Court.”
While serving as solicitor general, Ho also filed a friend of a the court brief on behalf of Texas and 37 other states supporting a Supreme Court challenge to Chicago’s ban on handguns.
Ho also faced questions from Democrats about an article he wrote in 1997 saying he supported eliminating “all restrictions on campaign finance” outside of mandatory disclosures for campaign contributions. He explained to Feinstein in written responses to her questions that when he wrote the article he had in mind the argument that campaign finance restrictions could potentially be used to block a publishing company from putting out books directly related to a campaign.
Ho noted the government also made the argument before the Supreme Court, but declined to provide his personal views on the issue, citing rules outlining how judges should behave during the confirmation process.