Federal judges: From political players to lifetime appointments
Political opposites were both big contributors before becoming judges
Rhode Islander John “Jack” McConnell Jr. and Texan James “Jim” Ho are on opposite ends of the political spectrum. But their paths to lifetime appointments as federal judges are remarkably similar.
Both enthusiastically contributed to political campaigns before they were nominated to become federal judges. They were two of the biggest donors to members of the Senate Judiciary Committee in recent memory.
Both had supported organizations that drew partisan rebuke. McConnell volunteered with Planned Parenthood, a perennial target of conservative critics for its work providing abortion services. Ho worked with the First Liberty Institute, perceived by many on the left as anti-LGBTQ.
Both were active in party politics, although Ho supported Republicans and McConnell supported Democrats.
After they were nominated, Republicans criticized McConnell and Democrats attacked Ho, sometimes taking shots for baggage they defended in their own nominees.
A CQ Roll Call investigation identified dozens of federal judges appointed during the Trump and Obama administrations who made significant campaign contributions to candidates, political parties and even to members of the Senate Judiciary panel, who confirm or reject judicial nominees. But McConnell and Ho’s campaign contributions and political activity — and the controversy they generated — stand out.
“If judges are seen as simply partisan players … judicial legitimacy is under threat,” said Alicia Bannon, who leads the Fair Courts Project at the Brennan Center for Justice. She said that legitimacy depends on respect for the institution. The courts perform critical roles, like holding government to account and protecting citizens’ rights.
“It’s high stakes for people to respect the courts and trust the courts,” Bannon said.
[Trump-appointed judge playing defense on presidential powers]
McConnell came up in the tight-knit world of liberal Rhode Island state politics. He married the daughter of the state Supreme Court judge he had clerked for right out of law school and spread the money he made as a tort lawyer among local and national Democratic causes.
His relationship with Rhode Island Democratic Sen. Sheldon Whitehouse goes back at least two decades. McConnell litigated a case over many years with the blessing of Whitehouse, who, at the time, served as the state attorney general. McConnell took on the lead pigment industry and paint manufacturers accused of minimizing the danger of lead in paint products as far back as the 1920s. McConnell’s team eventually won the case in 2006, but the Rhode Island Supreme Court overturned the verdict in 2008.
Both McConnell and Whitehouse declined to comment for this story.
The scale of McConnell’s political giving sets him apart from most other judges nominated during the Trump and Obama administrations, the CQ Roll Call investigation showed. In the last 30 years, he contributed half a million dollars to federal political committees, more than any other judge nominated by Presidents Barack Obama or Donald Trump. About $190,000 went to members of Congress. At least $200,000 more went directly to the Democratic Party and its state affiliates, according to a review of Federal Election Commission records.
He contributed nearly $12,000 to Whitehouse and almost $9,000 to Rhode Island’s senior senator, Democrat Jack Reed. As his home-state senators, both had the power to propel or torpedo his nomination. Whitehouse was on the Senate Judiciary Committee in 2011 and voted on McConnell’s confirmation to the federal bench that year. McConnell had also made contributions to top Democratic leaders such as Sens. Charles E. Schumer and Richard J. Durbin; and to Sen. Al Franken, who also voted on McConnell’s confirmation.
McConnell’s wife, Sara Shea McConnell, whose occupation is often listed as “homemaker” on FEC records, was also a big donor. She has contributed more than $250,000 to Democratic candidates and causes. That includes more than $28,000 to Obama’s first presidential campaign and $4,200 to Whitehouse. Her political contributions stopped after her husband became a federal judge.
Sara Shea McConnell did not respond to a request for comment.
Judge McConnell stepped up his political activity in the 1990s and 2000s. He served as treasurer of the Rhode Island Democratic State Committee for 14 years starting in the mid-1990s. He also volunteered as the committee’s acting executive director.
McConnell worked on a number of campaigns for candidates who would go on to prominent political careers. From 2003 to 2009, he chaired the mayoral campaign of David Cicilline, who now represents Rhode Island’s 1st District.
As a member of the national finance committee for Hillary Clinton’s senatorial campaign, McConnell hosted a fundraiser in her honor at Cicilline’s house in 2004, The Providence Journal reported. More than 100 guests paid between $1,000 and $2,000 for tickets to the event, which McConnell described as “a festive evening in the mayor’s backyard filled with a lot of Democrats committed to helping Sen. Clinton get back into the Senate.”
The Rhode Island Democratic State Committee appointed McConnell to the Electoral College that voted for Obama based on 2008 general election results.
For four years, McConnell served as director of the Rhode Island branch of Planned Parenthood, which provides clinical reproductive health care including access to contraception and abortion and has long been a target of conservative attacks. He also worked with the American Civil Liberties Union on at least one case, on behalf of the family of a Chinese immigrant who died in custody of U.S. Immigration and Customs Enforcement.
A contentious nomination
McConnell’s professional and political background triggered fierce criticism from conservative members of the Senate. It took more than two years to get his nomination to the Senate floor because of Republican-initiated filibustering that effectively blocked confirmation votes. His steady flow of political contributions and deep connections to the Democratic establishment especially alarmed his opponents, and they also worried he held an anti-business bias.
“There is nothing wrong with people contributing money to political candidates or parties or causes they believe in,” Texas GOP Sen. John Cornyn said in a May 2011 floor speech. “But it is another matter when these contributions are made in connection with no-bid contracts or apparent political favors.”
Cornyn became one of McConnell’s most vociferous critics, enumerating objections to his nomination for over 30 minutes on the Senate floor and writing an op-ed in The Washington Times decrying McConnell’s record.
The Texan took particular issue with the large-payout settlements McConnell and his firm pursued against industry titans and sought to link the firm’s partnership arrangements with state attorneys general and McConnell’s history of political contributions. Beyond the lead paint litigation, McConnell and his team partnered with a number of states litigating asbestos and tobacco injury cases.
Whitehouse defended McConnell’s character and record on the Senate floor, emphasizing that the nomination had garnered bipartisan support in Rhode Island.
“There is no dishonor in representing poisoned kids, lung cancer patients or the bereaved widow of a mesothelioma victim. … We must not disqualify talented and successful advocates merely because of their prior political or legal advocacy,” Whitehouse said. “We should remember … that lawyers we disagree with can make the transition from advocate to arbiter.”
Sen. Mitch McConnell, who was minority leader at the time, said statements the nominee had made against large businesses indicated that he was unqualified for the federal bench.
“After such a long record of hostility toward one segment of American society, it is difficult to believe Mr. McConnell can now turn on a dime and ‘administer justice without respect to the persons,’ as the judicial oath requires,” the Kentucky Republican said.
Vermont Democrat Patrick Leahy, who chaired the Senate Judiciary Committee from 2007 to 2015, responded to that point a week after McConnell’s confirmation, during a floor debate on another federal judicial nominee.
“All of these nominees have assured us that they understand the difference between being an advocate for a client and serving as a judge. I have no doubt that they do,” he said.
Ultimately, a handful of Republican senators voted in favor of cloture — bringing Senate floor debate to a close and ending any chance of a filibuster. That allowed the Senate to vote on McConnell’s confirmation.
Tennessee Republican Lamar Alexander warned that filibustering a district court nominee would set a dangerous precedent. He chose to vote for cloture and to subsequently vote against McConnell’s nomination.
“I also understand the strategy of ‘They did it to us, so we will do it to them,’” Alexander said, referring to Democratic senators who had sought to block President George W. Bush’s circuit court nominees with filibusters a decade prior.
“Unfortunately, that strategy, I am afraid, will lead us to a new and bad precedent, one which will weaken the Senate as an institution and come back one day to bite those who establish it,” Alexander added.
McConnell’s confirmation ultimately passed along strict party lines — all 44 nay votes were delivered by Republicans, and none voted in his favor.
The flip side
Six years after McConnell’s controversial nomination, Republicans controlled both the Senate and the executive branch. Cornyn and Whitehouse found themselves on opposite sides of a similar dispute when Trump nominated a Taiwanese-born Texan named Jim Ho to the 5th U.S. Circuit Court of Appeals.
Ho immigrated to Texas as a child. As an adult, he integrated himself into the local politics scene. Like McConnell, he had developed strong relationships early in his legal career with the two men who would become his home-state senators.
Not long after law school, he served as chief counsel to two Senate Judiciary subcommittees under Cornyn. A few years later, in 2008, he became Texas’ solicitor general, following in the footsteps of Cruz, who held the position immediately before Ho.
Cruz pursued particularly conservative cases during his time as solicitor general at the direction of then-Texas Attorney General Greg Abbott. Cruz submitted briefs in trials around the country defending conservative positions, making “a concerted effort to seek out and lead conservative fights,” he told The Texas Tribune in 2012.
Ho continued that practice. During his time as solicitor general, he participated in several fundamental cases that were argued before the Supreme Court. Among them was the landmark Second Amendment case, McDonald v. City of Chicago. He submitted a brief representing 38 states, arguing that preserving the right to bear arms applies not only to the federal government, but to state governments as well.
Ho eventually spent many years as a civil attorney with a large law firm. Pro bono work filled out his portfolio. He volunteered as an attorney for the First Liberty Institute, a nonprofit law firm focusing on religious-liberty cases that often face condemnation from liberals for what they describe as anti-LGBTQ views.
Ho’s relationship with Cruz and Cornyn transcended the professional to the political. In 2011, he joined the board of directors for the Ted Cruz for Senate campaign, a position he held at the time he was nominated, according to the questionnaire he submitted to the Senate Judiciary Committee. He also appeared in a presidential campaign video sponsored by a pro-Cruz political action committee in 2015, extolling the senator’s pursuit of conservative values.
“There is no one in my generation who has done more to champion constitutional conservative causes than Ted Cruz,” Ho said.
In 2014, he published an op-ed in The Dallas Morning News in favor of Cornyn’s reelection to the Senate.
“Sen. John Cornyn is not just a conservative fighter but an effective one, who regularly identifies and combats threats before they ripen,” he wrote.
Ho, Cornyn and Cruz declined to comment for this story.
Almost all of Ho’s nearly $37,000 in political contributions went to Cornyn or Cruz, who both sit on the Senate Judiciary Committee and supported his nomination. About $6,000 of those contributions went toward Cruz’s presidential campaign. Over $5,000 in additional contributions went to other political causes, including the campaigns of Utah Republican Mike Lee and Iowa Republican Charles E. Grassley, both members of Senate Judiciary.
Ho’s wife, Allyson Ho, has made contributions to four current Senate Judiciary members: about $7,200 to Cornyn and $10,000 to Cruz; $1,000 to Grassley and $500 to a PAC that names Cruz and Lee as beneficiaries.
Allyson Ho did not respond to a request for comment.
Cornyn and Cruz have said they rely on what they call a Federal Judicial Evaluation Committee to vet potential federal judges from Texas. In 2013, the last time the full roster of committee members was made public by the two Texas senators, Ho had been serving as co-chair, and Allyson was also on the committee.
Two other federal judges also spent time on the committee, Charles Eskridge III and Michael Truncale — both generous donors to Cornyn and Cruz.
Eskridge contributed more to Cornyn and Cruz than Ho, but his confirmation passed in the Senate with little fanfare.
Trump nominated Truncale to be a federal district judge in 2018. He was confirmed by the Senateon a 49–46 vote, with one Republican, Utah’s Mitt Romney, voting against him because of Truncale’s description of Obama as “un-American imposter” years earlier.
Eye of the beholder
At Ho’s confirmation hearing in 2017, Cruz spoke warmly of the nominee. Upon stepping down as solicitor general of Texas, Cruz said he was tasked by Abbott, then the Texas attorney general, with finding his own replacement.
“I went and recruited my longtime friend Jim Ho to take the job,” Cruz said.
Sen. Mitch McConnell vouched for Ho’s fair-mindedness.
“Mr. Ho is another well-qualified individual, and, like all of President Trump’s judicial nominees, he is dedicated to upholding the rule of law and serving as an impartial arbiter on the bench,” the Kentucky Republican said.
But the nomination inspired backlash as well.
Whitehouse was particularly critical during Ho’s nomination hearing, which Ho shared with another federal judiciary nominee. Whitehouse needled Ho over a memo that he had written during his time at the Justice Department’s Office of Legal Counsel. A series of Justice Department documents referenced the memo while discussing whether harsh interrogation practices against overseas prisoners may be permissible under U.S. law. The Obama administration later disavowed the so-called torture memos.
The Judiciary Committee did not receive Ho’s original memo for review, which upset Whitehouse.
“Mr. Chairman, there’s a point at which this whole process becomes just a joke of ramming people through,” he said, addressing Grassley, who was the Senate Judiciary chairman at the time. “It seems to me that this committee not caring to see this document is just … another bad precedent along the lines of stacking nominees together to minimize the amount of question time they have to face.”
But Whitehouse didn’t have much recourse. He and the other Democrats didn’t have the votes to overturn the confirmation. By the time Ho’s nomination came up, a rule change required only a simple majority to confirm a nominee.
It was another skirmish in the ongoing battle between the two parties over judicial nominations. Like McConnell six years earlier, Ho’s confirmation also passed along nearly identical party lines.
Less than six months after the confirmation vote, Whitehouse condemned Ho’s first judicial decision, which he believed confirmed many Democrats’ apprehension about Ho’s judgment.
The case involved an Austin, Texas, city council member who wanted to challenge a cap on individual contributions to city council elections designed to avoid corruption — or the perception of corruption. Twelve judges on the 5th Circuit voted against the challenge, but Ho and one other dissented.
“If you don’t like big money in politics, then you should oppose big government in our lives. …. The size and scope of government makes such spending essential,” Ho wrote in his dissent.
Whitehouse said all of Ho’s pledges to “separate himself from all the advocacy that he has done” had not borne out.
“And what does he do in his very, very first opinion? In his very first opinion? He writes a dissent … that contains a long and bizarre political science lecture that is a paean to the role of dark money and big money and influence in politics,” Whitehouse said.
He called Ho’s dissent “not consistent with the image that he had tried to portray in this hearing room just months before.”
“He basically outed himself as an extremist, Opinion One. Opinion One!” Whitehouse said.
Gabe Roth, executive director of Fix the Court, worries that Ho and McConnell may be the harbinger of more bitter partisan fights to come. Roth’s nonpartisan and nonprofit organization advocates more accountability in the federal court system.
For the sake of public sentiment, he said, “the Senate should at least do more to help with the fiction that the third branch isn’t partisan.”
“There are great Republican-leaning lawyers in Texas that can get 70 or 80 votes, the same thing in Rhode Island. There are great liberal lawyers in Rhode island that can get 70, 80 votes,” Roth said. “Texas is red, but not Jim Ho red. Rhode Island is blue, but not Jack McConnell blue.”