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Voting rights lawyer Dale Ho was confirmed to a federal district court covering Manhattan after waiting more than 20 months as a nominee.
The Senate voted 50-49 on Wednesday to send the ACLU attorney to the US District Court for the Southern District of New York.
Sen. Joe Manchin (D-W.Va.), who’s in a competitive reelection fight, joined all Republicans present in voting no. Manchin aligned himself with GOP characterizations of Ho as a partisan unsuited for judicial service.
President Joe Biden initially selected Ho in September 2021, but conservative opposition over his progressive legal background and roadblocks preventing Democrats from pushing him through with their thin majority slowed his advancement.
Ho, who also worked at the NAACP Legal Defense and Educational Fund, brings roughly 15 years of civil rights experience to the bench. That includes two arguments before the US Supreme Court challenging the Trump administration’s attempt to add a citizenship question on the 2020 Census.
“His career really reflects his dedication to the Constitution and its protections, and really, his entire legal practice has been dedicated to ensuring people’s rights to representation,” said Theresa Lee, litigation director at the Harvard Election Law Clinic who worked with Ho at the ACLU Voting Rights Project.
Biden has put a premium on diversity of nominees in terms of demographics and professional background. That includes nominees like Ho with experience as civil rights lawyers.
Former colleagues described Ho as a detail-oriented litigator focused on the facts and committed to the principle of equal justice under law, which they said will serve him well as a federal judge.
“He’s a very fair-minded person,” said Samuel Spital, now director of litigation at LDF who worked with Ho. Even as an advocate, Ho displayed qualities befitting of a federal trial judge, Spital said. Ho thought about issues “generally” and was “considerate of arguments on the other side,” he said.
Early Years
Ho, 45, was born in San Jose to parents who immigrated to the US from the Philippines. After graduating from Princeton, he worked as a self-employed actor for two years, with roles on “Law & Order” and in the New York Shakespeare Festival, before enrolling at Yale Law School.
Ho clerked for Judge Barbara S. Jones in the Southern District of New York and Judge Robert S. Smith in the New York Court of Appeals. He then went to Fried, Frank, Harris, Shriver & Jacobson LLP in New York as an associate and LDF fellow.
Ho later became an assistant counsel at LDF where his work focused on voting rights and other civil rights matters, including Shelby County v. Holder, in which the US Supreme Court struck down parts of the Voting Rights Act of 1965.
Spital said he and Ho worked together on Shelby County poring over the congressional record to analyze voting discrimination evidence before Congress, which was an important issue for the courts.
“Dale really took to that part of the job,” Spital said. “Some folks are sort of more interested in the key legal principles, and Dale certainly is interested in those as well and very fluent with those principles, but he really, really cared about the facts in the record,” Spital said.
Voting Rights
Ho joined the ACLU as director of its Voting Rights Project in 2013, leading the organization’s work challenging partisan gerrymandering and state laws that would restrict voting.
In 2018, he made his first Supreme Court argument in a successful challenge to the Trump administration’s attempt to add a citizenship question to the 2020 Census. Ho later argued a second case at the Supreme Court involving the census, Trump v. New York, in which a divided court ruled the challenge was premature.
The first case, Department of Commerce v. New York, was one of four ACLU challenges to Trump-era policies featured in the 2020 documentary “The Fight.” The film followed Ho from practicing for the oral argument in front of a hotel room mirror, to the moment he read the ruling to see how the justices came down.
During an interview in the film, Ho said he’d wanted to find something that would allow him to spend more time with family but abandoned that idea after the 2016 election. “If I’m not going to be a civil rights lawyer right now, in this moment, when?” Ho said.
Nomination Controversy
Ho attracted conservative criticism following his nomination in the fall of 2021. JCN, a conservative group focused on the judiciary, launched an ad calling Ho a “career puppet for left-wing, dark money groups.” And at his December 2021 hearing, Ho faced questions about his advocacy, including past social media posts.
Sen. Mike Lee (R-Utah) criticized Ho’s tweet that suggested the senator said Republicans would rely on a conservative-majority Supreme Court if they can’t rely on minority rule and strict conditions on voting.
Ho, at the hearing, said he “misinterpreted” what Lee meant in his post and apologized. Ho said the tweet was in response to news reports at the time about plans by legislators to ignore their state’s votes for president.
Manchin, in an emailed statement, explained his decision to oppose Ho, saying partisanship and “prior inflammatory statements make me doubt whether he can be impartial when interpreting the Constitution.”
Ho pledged to leave his work as an advocate behind and serve as an impartial judge if confirmed. “I’ve pushed the envelope to break through, but I regret the times that I’ve crossed the line with overheated rhetoric,” he said in response to a question from Chair Dick Durbin (D-Ill.).
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