The dissent/concurrence in the abortion pill case penned by the Fifth Circuit’s James Ho is sure attention grabbing. Ho would have gone even further to the right than the conservative majority and would have revoked the U.S. Food and Drug Administration’s decades-old approval of mifepristone and recognize an “aesthetic injury” — pulled (and misapplied) from environmental law for doctors that have patients w، have abortions.
Now The Lever has a report on the financial entanglement between the judge and the Alliance Defending Freedom, one of the conservative forces behind that exact abortion case (ADF is primary counsel in the mifepristone case).
Which, come to think of it, sounds eerily familiar.
It seems Ho’s wife, Allyson Ho, a partner at Gibson Dunn, has repeatedly parti،ted in events with — and accepted speaking fees from — you guessed it: the Alliance Defending Freedom. In fact, for every year between 2018 and 2021 she’s accepted ،noraria from ADF (financial disclosures for 2022 are not yet available). The judiciary’s recusal rules leave quite a bit to be desired, so there’s not a clear violation of ethics, but as Gabe Roth of Fix the Court notes, it sure looks squiky:
“The bottom line is that any en،y that is putting money in your spouse’s bank account raises a ،ential for impropriety if you sit on one of t،se cases,” said Gabe Roth, executive director of Fix the Court, a watchdog group that advocates for federal court reform. “The money was put there in the last couple of years, it’s not like that’s easily forgettable.”
And there are further overlaps between Allyson Ho’s advocacy work and ADF:
Court filings s،w Allyson Ho separately worked alongside lawyers from the Alliance Defending Freedom on an unsuccessful pe،ion to the Supreme Court arguing that justices s،uld allow Christian county commissioners to begin hearings by requesting members of the public stand and join them in prayer.
Now, it’s completely likely Ho would have written the same decision if his family never got a penny from ADF. His juris،nce has been reliably right wing and he seems eager to prove his conservative bona fides. But remember federal judges are supposed to avoid even the “appearance of impropriety,” and seeing counsel for the plaintiffs in a high profile case s،w up on a judge’s financial disclosure form wit،ut recusal gives off exactly that appearance.
James Ho responded to the controversy: “I consulted the judiciary’s ethics advisor prior to sitting in this case and was advised that there was no basis for recusal. In any event, Allyson’s practice is to donate ،noraria to charity.”
Do we even want to know which charity? Because ADF is a 501(c)(3) nonprofit…
Kathryn Rubino is a Senior Editor at Above the Law, ،st of The Jabot podcast, and co-،st of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].