Paul L. Caron

Thursday, November 3, 2022

More Law Profs Debate Judge Ho's Boycott Of Yale Law School Grads For Judicial Clerkships

The Hill:  Yale’s Perplexing Invitation to Judicial Bullies, by Steven Lubet (Northwestern):

Yale Law Logo (2020)How is Yale Law School like the University of Alabama football team? The obvious response is that both are widely considered to be the best at what they do. But there is another answer. They are both apparently willing to do what it takes to stay at the top, even if that requires compromising essential principles. ...

Ho’s boycott constitutes judicial misconduct, dangling the prospect of clerkships before some students and withholding them from others to coerce Yale’s administrators into changing their practices. ...

You might think that Yale’s dean, Heather Gerkin, would loudly object to the victimization of her students through an unethical judicial boycott, but only if you don’t understand how law school rankings work. ...

Far from criticizing Ho and Branch for threatening to depress Yale’s applicant pool, and weaken the career prospects of future students, Gerken has rewarded them with a speaking invitation, presumably to demonstrate Yale’s compliance with their demands.

Ho and Branch were ungracious in return, using their acceptance letter to further condemn Yale’s culture as “among the worst when it comes to legal cancelation,” while adding that the law school’s recent reforms may be “nothing more than parchment promises.”

For the record, I agree with many of Ho and Branch’s criticisms of Yale, about which I have written in the past. But valid complaints must not be pursued through unethical means. ...

Ho and Branch should certainly be able to speak without disruption at Yale, or any law school, if invited by a student group, and Yale’s plan for an “ongoing lecture series that models engaging across divides” is a great idea. But it is disappointing to see the dean’s unqualified imprimatur on an event featuring Ho and Branch, which will be counted as a victory for judicial strong-arming.

Volokh Conspiracy:  Justice Kagan Asks About Racial Preferences For Law Clerk Hiring, by Josh Blackman (South Texas):

During oral arguments in SFFA v. Harvard, Justice Kagan tried to broaden the case beyond higher education. She explained that many "institutions" need to rely on racial preferences to achieve their diversity goals. (Notice how the word "institution" presumptively refers to an organization that pursues progressive goals, for an entity that leans conservative is no longer behaving like an "institution.") During a colloquy with Cam Norris, Justice Kagan asked about judges who hire law clerks based, at least in part of race:

JUSTICE KAGAN: Do you think that if you're a law firm or if you're a judge, if you're a judge and you want to have a diverse set of clerks, do you think a judge can't think about that in making clerkship decisions? ...

Kagan was asking if a judge could hire a minority law clerk as a way to signal to the broader public that minority attorneys can succeed as federal law clerk.

JUSTICE KAGAN: I'm using --let's say a judge says I want a diverse set of clerks. That's --you know, I want clerks who would -you know, great on any number of criteria, but I also want a diverse set of clerks. So, over the years, people will look at that and they'll say: There are Asian Americans there, there are Hispanics there, there are African Americans there, as well as there are whites there. Can a judge not do that?

The key phrase is "people will look at that." That is, the public will perceive that the judge is hiring minority law clerks. ...

[C]an a federal judge use his hiring of law clerks to promote some broader societal goal? Hello Judge Ho.

Steve Lubet wrote a column at The Hill suggesting that Judge Ho's boycott was unethical. ...

Would Justice Kagan's hypothetical "advance the private interests of the judge"? Does the hypo pursue a non-judicial end? Is it within the judicial function to hire minority law clerks to signal that pathways are open to minority law students? You might reply, of course! Judges can use their official power to promote broad values like diversity, equity, and inclusion. A similar argument could be made about the freedom of speech and expression. Judge Ho's hiring policy seeks to promote free speech, while Justice Kagan's hypothetical promotes DEIdeology, as I call it. Now you might reply that Ho's policy includes, while Kagan's hypo excludes. Nonsense. Hiring, like university admission, is a zero sum game. Every applicant who is hired means another applicant is not hired. The power to include embraces the power to exclude.

If Lubet is correct that "Judicial ethics prohibit using the powers of office to enforce non-judicial ends," then many judges will need to revisit their clerk-hiring practice. And their requirement to appoint minority counsel. And so on. Fortunately for the judiciary, I do not agree with Lubet's reading of Canon 2B. I think the phrase "private interest" should be read as an interest private to the judge. That is, something that would personally advantage him. Actions that are designed to advance the "law, the legal system, and the administration of justice"–as Canon 4.A.1 frames it–should not be read to promote a judge's "private interests."

This position doesn't work. Implicit in Ho's policy is a judgment: students who knowingly choose to go to Yale, in light of its failure to protect free speech, lack merit. They made a decision, and that decision reflects poorly on who they are, and how they would perform as a clerk. You may disagree with that judgment, but it is unquestionably on the "basis of merit." There is no ethical violation to see here.

I know Judge Ho has received much criticism. Truly, the boycott has not advanced Judge Ho's private interests–if anything, it has harmed him! It is always easier for a judge to keep his mouth shut. But Judge Ho should be commended for saying the quiet part out loud. How many federal judges hire law clerks to signal that pathways to leadership are open? How many federal judges hire law clerks to virtue signal that they have diverse chambers–especially when they've been accused of being insensitive to minorities? Slogging through the five hours of the oral arguments has reinforced how right Chief Justice Roberts was (for once): "it is a sordid thing, this divvying us up by race." Better to be done with it now, and not in 25 years.

Minding the Campus Op-Ed:  Be Quiet So You Can Hear the Free Speech at Yale, by Robert Steinbach (Arkansas):

Yale Law School has seen a series of attacks on conservative speakers by leftist students. Rather than firmly address the disruptive students’ violations of school policies, time and time again Yale administrators found ways to excuse the wrongdoers and intimidate the victims. Yale certainly isn’t alone in this shameful behavior, but it has elevated to an art form, perhaps unmatched in influence, its open hostility toward conservative ideas and open support for leftist disruptions, eggshell outrage, and violence. ...

Academia is going in the wrong direction. Fair-minded individuals cannot stand by as education continues its descent into a cenobium of cancel culture. Ho’s proposal stands more apt today than it did yesterday and is just one effort among many to address our broken school system writ large. ...

Whether or not Ho’s efforts change behavior at Yale, the judges deciding to eschew a school that models anti–free speech ideals will rationally choose to hire from schools less antagonistic to the ideas that they want their judicial clerks to employ when serving in chambers.

Indeed, we use heuristics all the time in hiring. Virtually all Supreme Court Justices have for some time only come from two schools. Eight current Justices graduated from Harvard or Yale. Indeed, only one post-WWII justice ever attended a third- or fourth-tier law school by today’s standard: John Marshall Harlan II, whose grandfather also served on the Supreme Court.

While there certainly have been tepid complaints that this heuristic has been employed excessively for Supreme Court Justices, they pale in comparison to the pushback toward Ho’s proposal. But it’s always harder to wrench away a claimed entitlement from an existing recipient than it is to simply grouse about them at Georgetown cocktail parties.

Academia is broken, and a handful of judges has responded with one small step for its own good, perhaps the greater good. That’s their rational choice, and we should be thankful for their transparency in the process.

See also Washington Examiner:  Yale Law School Still Refusing to Correct Its Anti-Free Speech Ways, by Lauren Roble (Founder & Executive Director, William F. Buckley Jr. Program):

Yale Law School’s response to the toxic environment growing on its campus has largely been talk. And where there’s been action, it’s been in the wrong direction. To reverse the impression that Yale Law School is hostile to free speech, and to restore the standing of its law students, Yale needs to prove that attempts to shout down or intimidate speakers will result in consequences. Its bureaucrats need to demonstrate true commitment to free speech principles instead of protecting themselves from repercussions when they abandon those ideals.

Yale Law School has done little to assuage the concerns of cancel culture on campus. They need to correct course, and fast.

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