This is a story about a confrontation between a prominent federal judge and the nation’s top-ranked law school. Neither comes away looking very good.
The judge has unethically attempted to bully the school into tightening its control over student protests in conformity with his own policy views, and the law school meekly moved to placate the judge, without objecting to (or even mentioning) his blatant abuse of judicial power.
Judge James Ho, appointed by former President Donald Trump to the U.S. Fifth Circuit Court of Appeals, absolutely hates so-called “cancel culture,” especially at law schools, and he has taken it upon himself to do something about it. Speaking earlier this fall at a Federalist Society conference in Kentucky, Ho decried the “cancellations and disruptions” that have regularly interfered with conservative speakers on law school campuses. He lamented incidents at Georgetown, Duke, and the City University of New York, but he directed special ire at Yale, calling it the “most elite institution of legal education [but] the worst when it comes to legal cancellation.” To compel Yale to change course, Ho declared, “I will no longer hire law clerks from Yale Law School. And I hope that other judges will join me as well.”
Although Ho does have the ultimate authority, as he put it, to decide whom “I will hire as law clerks in my own chambers,” his choices are still constrained by the rules of judicial ethics. In fact, his clerkship boycott violates two provisions of the Code of Conduct for United States Judges, first adopted by the U.S. Judicial Conference in 1973 and applicable to every federal judge below the Supreme Court. Canon 3B(3) provides that judges must make appointments, specifically including law clerks, “fairly and only on the basis of merit.” Moreover, Canon 2B makes it clear that judges must not use the powers of office for non-judicial purposes by “lend[ing] the prestige of the judicial office to advance the private interests of the judge.”
Ho candidly admitted that the purpose of his boycott is not to weed out unqualified applicants—“I’ve hired from Yale myself,” he said, “and they’re great kids”—but rather to punish Yale for its perceived poor treatment of conservative students and speakers. Even the most valid objectives, however, cannot be pursued through unethical means.
Ho’s complaints about Yale are not insubstantial. In one incident, as he described it, about 100 students loudly disrupted a panel presentation by Kristen Waggoner of the Alliance Defending Freedom, a conservative Christian legal organization that supports the criminalization of gay sex among other anti-LGBTQ positions. Although the purpose of the panel, which included a representative of the American Humanist Association, was to “showcase the broad consensus in support of free speech,” the protesting students shouted, stomped, and banged on walls so loudly that the speakers could not be heard, drawing repeated rebukes from the faculty moderator.
According to Ho, the event became so rowdy that security had to call for “backup,” but other sources reported the campus police presence as routine. In any case, it is undisputed that the dean of students was present during the event and did not attempt to quiet the protesters. Law school Dean Heather Gerken later announced that no disciplinary action would be taken against any students, which led one professor to warn that the inaction had set a dangerous precedent.
“Yale not only tolerates the cancellation of views,” Ho continued, “it practices it.” As proof, he cited another incident in which a student circulated a light-hearted invitation to a “trap house” party, which was regarded by others as racially offensive and “triggering.” In Ho’s telling, the administration “threatened to destroy [the student’s] career if he didn’t apologize,” which is a bit of an overstatement. The administrator’s actual statement was “there’s a bar you have to take” and an apology would “make this go away.” That was improper, coming from a dean’s office, as I have written, and no doubt worse in Ho’s estimation because it involved the same dean of students as in the earlier speaker disruption.
But it is highly ironic that Ho complained about Yale’s alleged threat to damage the career of one student, while at the same time holding hostage the career prospects of future graduates by calling on the 855 other federal judges to join him in denying them access to clerkships.
Even granting the sincerity of Ho’s declared intention simply to compel Yale to “restore order,” his campaign of coercion will inevitably “hurt future Yale students,” as he himself has recognized, for the sake of his self-defined objective.
“I don’t want to cancel Yale,” he declared. “I want Yale to stop canceling people like me.”
Yale’s initial response was the appropriate one. Completely ignoring Ho’s threats and accusations, Gerken distributed a message to alumni outlining her recent steps—all of which predated the boycott announcement—to reinforce what she called the law school’s “enduring commitment to the free and unfettered exchange of ideas,” and noting without further comment that the dean of students had already been replaced. That should have been the end of it, as far as Yale was concerned. Unfortunately, the law school did not hold fast, as the bullying appeared to have gained traction.
Twelve other federal judges told a reporter that they were no longer hiring clerks from Yale, “citing a slew of scandals that they say have undermined free speech and intellectual diversity.” The boycotting judges timorously insisted on anonymity “in order to speak freely,” notwithstanding their life tenure. One of these less than courageous boycotters, described as a prominent appeals court judge, anonymously cautioned students to “be mindful that they will face diminished opportunities if they go to Yale.”
Only one federal judge was gutsy enough to announce her participation in the boycott. Expressing her concerns about the “stifling of debate,” Judge Elizabeth Branch, a Trump appointee to the Eleventh Circuit Court of Appeals, accepted “Judge Ho’s invitation to join him in declining to consider students from Yale Law School for clerkships with me,” leading a reporter for the conservative National Review to note the increasing odds that conservative judges “will trash the resumes of awesome Yalies because of the school’s woke reputation.”
Other federal judges, both liberal and conservative, wanted nothing to do with the boycott. Ronald Reagan appointee Judge Jerry Smith, a Fifth Circuit colleague of Ho’s, called the boycott “regrettable” and urged Yale students to apply to him instead. Third Circuit Judge Theodore McKee, a Bill Clinton appointee, went even further, saying “it’s ugly, it’s nasty.” Two other Reagan appointees, Judge J. Harvie Wilkinson of the Fourth Circuit and Judge Diarmuid O’Scannlain of the Ninth Circuit, announced that they would continue hiring clerks from Yale, as did Judge Diane Wood, who was appointed to the Seventh Circuit by Clinton.
That show of judicial support appears to have done nothing to stiffen Yale’s resolve. Far from resisting the boycott, or even criticizing the violation of the Code of Judicial Conduct, Gerken rewarded Ho and Branch with an invitation to speak at the law school, implicitly committing to keep student protests at a level acceptable to the judges. I emailed a request to Gerken for her views on the boycott, including its violation of the Code of Judicial Conduct, and whether she intended to raise the ethics issue with Ho and Branch during their campus visit. She did not respond.
Yale’s silence on the intentional victimization of its future students is baffling. Ho and Branch have conceded that many Yale students are clerk-worthy. Their boycott will not even apply to current students and graduates, but is instead intended to discourage “thousands of young people” from applying to Yale in future years.
Nor have Ho and Branch said what it will take to resolve the boycott, other than vaguely calling for an end to the purportedly “closed and intolerant environment that Yale embraces today.” Yale has thus been left in the classic target’s dilemma, having to guess at the extent of the bullies’ demands.
If Gerken’s forbearance was intended to be conciliatory, the tactic did not work.
Ho and Branch responded churlishly to her invitation. Their acceptance letter‚ which was made public on a site known to be highly critical of Yale’s culture—recounted all of their complaints while adding new ones. They condemned the law school as “among the worst when it comes to legal cancellation,” and characterized its recent reforms as perhaps “nothing more than parchment promises.”
That is how bullies typically operate, taking patience as weakness, courtesy as groveling, and compromise as an opportunity for renewed aggression.
Yale has thus been left in the classic target’s dilemma, having to guess at the extent of the bullies’ demands.
Yale’s surprising acquiescence apparently reflects the importance of clerkships, even to the law school perennially considered number one in the nation. Any federal clerkship, but especially those with appellate judges like Ho and Branch, can be a student’s first step en route to a successful career, often leading to a hefty bonus with a major law firm or a tenure track appointment in legal academia. A reporter who has often covered Yale for the right-leaning Washington Free Beacon opined that a wider boycott by “right-leaning judges” might well “deal a serious blow to Yale Law School” by depriving incoming students of “the best shot of clerking for prominent judges.” Remote as that possibility might seem, the mere possibility of a slide evidently caught Gerken’s attention.
It is hard to know exactly how Ho and Branch will exploit their undeserved platform at Yale, but there is every indication that they will revisit the incidents that prompted their boycott in the first place. There is little reason to think that Gerken or other faculty members will address the looming ethics issue, but it might well arise if the judges agree to take questions from students. If so, it is likely that Ho will resort to an argument that he raised in the published version of his Federalist Society lecture.
“Suppose a law school discriminates on the basis of race,” he posited. “Could a judge publicly refuse to hire from that school, in hopes of spurring a change? Surely a judge could do so.” The analogy seems compelling, but it is ultimately misplaced. The Code of Judicial Conduct does not make exceptions for honorable intentions, and it is easy to understand why.
Ho’s comparator to promoting non-discrimination is “freedom of speech,” but other judges might have different priorities. Under Ho’s theory, a judge could ethically boycott clerks from Liberty University to coerce a change in its policy of punishing students who engage in “sexual relations outside of a biblically-ordained marriage between a natural-born man and a natural-born woman.” Likewise, a judge could refuse to hire clerks from Brigham Young University until the Mormon school agrees to serve alcohol. As conservative judges are fond of complaining about liberal initiatives, there is no limiting principle.
And indeed, why stop at judges and law schools? If employment boycotts are permissible to compel changes in an institution’s conduct, a supervisor at a federal agency could have refused to hire Harvard economics graduates in support of striking cafeteria workers. Indeed, a postmaster could boycott the graduates of a local high school until it fires its football coach.
The point is that judicial clerks are government employees, whose hiring is subject to federal law, including the rules of judicial ethics. The positions are not trinkets to be dangled in front of some students and withheld from others, simply to advance a judge’s policy goals, whether admirable or idiosyncratic.
Other judges have had no difficulty understanding this basic principle. Commenting on clerkship boycotts, the Fourth Circuit’s Judge Wilkinson said, “I do not think it right or fair to penalize individual students for an ill-advised institutional policy.” The Seventh Circuit’s Judge Wood said, “I would never delete students from a particular law school from the pool of people I consider for clerkships,” adding “Nothing but case-by-case consideration suffices.” Even the late Judge Laurence Silberman of the District of Columbia Circuit—an ultra-conservative Reagan-appointed icon if ever there was one—only proposed disqualifying the actual disrupters from potential clerkships, based on individual behavior, rather than boycotting the school itself.
Judges Ho and Branch have made themselves heroes to Republican political figures, such as Sen. Ted Cruz, who tweeted his approval of their “courageous and important stand.” Conservative commentator Ilya Shapiro celebrated their “call to arms,” which is precisely what is wrong with the boycott. It is unethical for federal judges to use their appointment power in a battle to achieve non-judicial objectives.
The presentation by Ho and Branch will evidently be the first event in an “ongoing lecture series that models engaging across divides.” That is a commendable plan, but there are plenty of equally conservative appellate court judges, including another 52 Trump appointees, who could make the same point without turning it into a victory tour for judicial strong-arming.
Someone among the deans and faculty at Yale must surely understand that federal court clerkships were designed to help judges decide cases, not for use as collateral in the culture wars. The administration’s inexplicable silence, however, confers legitimacy on Ho and Branch’s unethical boycott.
It is long past time for Yale to stop enabling judicial bullying and begin speaking out against it.
Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of Judicial Conduct and Ethics (5th edition) and many other books, including two published by the Yale University Press. His daughter is a graduate of Yale Law School.