Paul L. Caron

Monday, October 24, 2022

Judge Ho's Boycott Of Yale Grads For Clerkships Violates The Code Of Judicial Conduct

The Hill Op-Ed:  The Wrong Way to Combat Cancel Culture, by Steven Lubet (Northwestern):

Yale Law Logo (2020)Judge James Ho created quite a stir when he delivered the keynote address at a Federalist Society conference last month in Kentucky. His condemnation of “cancel culture” was standard fare for the conservative legal organization that supplied so many Trump administration judicial nominees — including Ho, for the Fifth Circuit Court of Appeals. But the big moment came when he castigated Yale Law School for teaching students “that there are no consequences for their intolerance” of conservative speakers. Citing two notorious incidents in which Yale students faced no disciplinary action for disrupting presentations by conservatives, Ho announced that “starting today, I will no longer hire law clerks from Yale Law School. And I hope that other judges will join me as well.” That was an unprecedented public pledge from a federal judge. It was also seriously unethical. ...

Such a coercive boycott violates two provisions of the Code of Conduct for United States Judges, adopted by the United States Judicial Conference and binding on all federal judges below the Supreme Court.

Under Canon 3B(3), a judge must “exercise the power of appointment fairly and only on the basis of merit.” This provision specifically applies to law clerks, and it is surely unfair to refuse to consider admittedly “great kids” in an effort to intimidate law school administrators. Hiring “on the basis of merit” should mean evaluating the abilities of individual applicants, unrelated to Ho’s disapproval of law school deans or his desire to force changes in the school’s operations.

Canon 2B provides that a judge must not “lend the prestige of the judicial office to advance the private interests of the judge.” Ho has attempted to do just that, dangling the possibility of prestigious clerkships before future students who abjure Yale, and withholding it from those who disregard his admonition. The Code makes no exception for a presumably admirable personal mission, like combating cancel culture. Judicial ethics prohibit using the powers of office to enforce non-judicial ends. ...

The inescapable fact is that Judge Ho abused his office by using clerkship hiring to bully a law school into compliance with his non-judicial agenda.

Yale Law School is a private institution, but Ho holds a public trust. Although Yale administrators may have acted badly, Ho has done worse.

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