5th Circuit judge challenges BigLaw firms' 'institutional bias' in opinion
Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans is calling out the country’s largest law firms for what he describes as “institutional bias.”. (Photo from the 5th U.S. Circuit Court of Appeals at New Orleans)
A federal appeals judge is calling out the country’s largest law firms for what he describes as “institutional bias.”
Judge James C. Ho was among the jurists on the 5th U.S. Circuit Court of Appeals at New Orleans who voted March 14 against an en banc rehearing of a decision that said Mississippi’s acceptance of mail ballots after Election Day violated the law.
Ho, who was appointed by President Donald Trump, also was a member of the three-judge panel that issued the earlier decision last fall.
“This is not the first time (and it surely won’t be the last) that opposing political interests will cross swords over whether and how election deadlines should be enforced,” Ho wrote in his concurring opinion.
Ho also responded directly to Judge Stephen A. Higginson, an appointee of former President Barack Obama, who authored a dissenting opinion in the case.
Higginson had acknowledged Adam Unikowsky, a partner at Jenner & Block, for a critique that he wrote of the panel decision and contended that the court benefits from lawyers’ “insight and criticism.” Higginson also said it was rare “that topflight lawyers, like Unikowsky, have time to offer scholarly critique of a case” in which they are not involved.
Ho pushed back on the notion that the court’s panel decision was “so off the mark” that leading lawyers felt compelled to provide their perspective on a pro bono basis. He said instead pro bono activity in the case could be a reflection of the bias at many large firms.
Ho cited recent legal scholarship showing that large firms tend to favor liberal positions in the pro bono amicus briefs that they file in controversial cases.
“The concern is that they have abandoned neutral principles of representation and instead engage in ideological or political discrimination in the cases that they’re willing to take on,” Ho said.
“Evidence of political and other forms of bias doesn’t by itself make a particular legal position right or wrong in any given case,” Ho added. “But it does mean that we shouldn’t be surprised when ‘topflight’ firms consistently jump in on only one side of politically charged disputes, including this one—whether the law actually supports their position or not. Nor should the firms themselves be surprised when others take notice that they are no longer abiding by the principles of the profession and react accordingly.”
Ho said while attorneys have the right to share their opinions, judges’ duty to apply the law consistently and fairly remains the same.
Earlier this month, Ho resigned from the Federal Judges Association because it issued a statement against recent judicial threats but apparently said nothing in defense of conservative U.S. Supreme Court justices.
He had previously announced that he is boycotting the hiring of clerks from law schools that he thinks have mishandled student protests or stifled conservative views.
Bloomberg Law has additional coverage.
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